CONTENTS
Paragraph Page
Chapter 1: Introduction and Background
1
7
Introduction
1
7
Acknowledgements
4
7
Mapping the Changing Constitutional Landscape
6
7
Human Rights Act 1998
8
8
The Constitutional Reform Act 2005 and the Concordat
12
9
Creation of the Ministry of Justice
19
11
Criteria for Assessing the Changing Landscape
22
11
The Rule of Law
23
12
Independence of the Judiciary
27
13
The Scope of our Inquiry
30
14
Chapter 2: Executive and Judiciary
31
15
Introduction
31
15
Strained Relationships?
34
15
Managing the Tensions
37
16
Table 1: The Craig Sweeney case: sequence of events
19
General Channels of Communication
54
22
Constitutional Change
57
23
Human Rights Act
88
31
“Dialogue” in Relation to Convention Rights
88
31
Ministerial Compatibility Statements and Parliamentary
Scrutiny
89
31
Greater Guidance to the Executive from the Courts?
93
32
Should there be a System of Abstract Review?
98
33
Review of Bills by a Committee of Distinguished Lawyers
107
35
Advisory Declarations
109
36
Chapter 3: Parliament and Judiciary
112
38
Introduction
112
38
Laying Written Representations before Parliament
113
38
Other Ways of Communicating with Parliament
120
39
The Question of Accountability
121
40
The Role of Select Committees
124
40
A Parliamentary Committee on the Judiciary
127
41
Post-legislative Scrutiny
130
42
Confirmation Hearings
131
42
An Annual Report on the Judiciary
136
43
Chapter 4: Judiciary, Media and Public
140
45
Introduction
140
45
Public Perceptions
141
45
The Role of Individual Judges
150
47
The Role of the Lord Chief Justice
156
49
The Role of the Judicial Communications Office
161
50
Chapter 5: Conclusions and Recommendations
172
54
Appendix 1: Select Committee on the Constitution
58
Appendix 2: List of witnesses
59
Appendix 3: Paper by Professor Kate Malleson: The Effect
of the Constitutional Reform Act 2005 on the Relationship
between the Judiciary, the Executive and Parliament
60
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
69
Appendix 5: Paper by Professor Paul Craig: The Rule of Law
97
Appendix 6: Declarations of incompatibility made under
section 4 of the Human Rights Act 1998
107
Appendix 7: Comparison of Responsibilities of the Ministry of
Justice and the Department for Constitutional Affairs; and
breakdown of duties of the Lord Chancellor and Secretary of
State for Justice
116
Appendix 8: Evidence by the Lord Chief Justice, 3 May 2006
118
Oral Evidence
Rt Hon Lord Falconer of Thoroton QC
Oral Evidence, 22 November 2007
1
Ms Clare Dyer, Legal Editor, The Guardian, Ms Frances Gibb, Legal Editor,
The Times, and Mr Joshua Rozenberg, Legal Editor, The Daily Telegraph
Oral Evidence, 6 December 2007
15
Rt Hon Charles Clarke MP
Oral Evidence, 17 January 2007
25
Rt Hon Lord Mackay of Clashfern
Oral Evidence, 24 January 2007
38
Rt Hon Lord Lloyd of Berwick
Oral Evidence, 24 January 2007
45
Rt Hon Sir Igor Judge, President of the Queen’s Bench Division and Head of
Criminal Justice, Mr Mike Wicksteed, Head of Judicial Communications,
Judicial Communications Office, and Mr Peter Farr, Chief Public Information
Officer, Judicial Communications Office
Oral Evidence, 21 February 2007
50
Professor Dame Hazel Genn
Oral Evidence, 7 March 2007
63
Mr Paul Dacre, Editor, Daily Mail
Oral Evidence, 7 March 2007
70
Rt Hon Lord Justice Thomas and Rt Hon Sir Igor Judge, President of the Queen’s
Bench
Division
Oral Evidence, 1 May 2007
77
Rt Hon Lord Falconer of Thoroton QC
Oral Evidence, 1 May 2007
85
Professor Robert Hazell, Professor Terence Daintith and Professor Alan Page
Oral Evidence, 9 May 2007
93
Dr Matthew Palmer
Oral Evidence, 9 May 2007
99
NOTE: In the text of the report, (Q) refers to a question in oral evidence
Relations between the executive,
the judiciary and Parliament
CHAPTER 1: INTRODUCTION AND BACKGROUND
Introduction
1.
Constructive relationships between the three arms of government—the
executive, the legislature and the judiciary—are essential to the effective
maintenance of the constitution and the rule of law. In recent years, the
character of these relationships has changed significantly, both because of
changes in governance and because of wider societal change.
2.
We therefore decided to take the annual appearances by the Lord Chancellor
and the Lord Chief Justice in front of our Committee as the starting point for
a broad assessment of the impact of the changes in these relationships. In
particular, we set out to identify points of friction or uncertainty and to offer
suggestions to the Government, Parliament and the judiciary as to how these
might be tackled.
3.
As if to illustrate the importance of conducting such an assessment, midway
through our inquiry a serious dispute erupted between the Government and
the judiciary over the new Ministry of Justice. This dispute, which was
ongoing at the time this report went to print, demonstrates that there are still
disagreements and uncertainties about the relationships between the three
arms of government. We hope that this report will help point the way to
more balanced and harmonious relationships in the future.
Acknowledgements
4.
We thank all our witnesses (listed in Appendix 2) for their invaluable oral
evidence, and we also express gratitude to Professor Anthony Bradley,
Professor Kate Malleson and Professor Paul Craig for their helpful papers.
5.
We are also most grateful to our Specialist Adviser on this inquiry,
Professor Andrew Le Sueur.
Mapping the Changing Constitutional Landscape
6.
In this report we examine the evolving constitutional relationships between
the judiciary, the executive and Parliament. The various reforms that have
been introduced and the changes that have come about in recent years may
be better thought of as a process rather than an event. However, for the
purposes of this inquiry we have focused on three milestones that have been
particularly influential in defining and influencing the changing character of
the relationships.
• The coming into force of the Human Rights Act 1998 (HRA) in October
2000.
• The passage of the Constitutional Reform Act 2005 (CRA) and the
formation of the concordat between the then Lord Chief Justice of
8
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
England and Wales (Lord Woolf) and the then Lord Chancellor (Lord
Falconer of Thoroton).
• The creation of the Ministry of Justice (MoJ), which formally came into
being on 9 May 2007.
7.
This is not to imply that all the changes have come about as a result of
developments in legislation and governance arrangements. The relationships
have also been shaped by changing attitudes and perceptions. Since the
revocation of the “Kilmuir Rules” in 1987, judges have been more open in
speaking to the news media. For their part, some ministers have felt able to
break with previously understood conventions and make robust and public
comments critical of judges and judgments. Moreover, the news media play
an increasingly important role in reporting and commenting on the judiciary,
and—as in other contexts—there has been a decline in the culture of
deference. Individual judges and the judiciary as a whole are seen as “fair
game” by columnists and headline writers in the tabloid press. Broadsheet
journalists also chart closely the intrigues of discussions and disagreements
between the senior judiciary and ministers.
Human Rights Act 1998
8.
It was always clear that the Human Rights Act would have constitutional
importance as well as giving citizens a practical right to use the European
Convention on Human Rights (ECHR) in litigation in our national courts.
Though careful to preserve the essence of parliamentary sovereignty (that no
court may question the validity of an Act of Parliament), the HRA
nonetheless gives the judiciary significant new powers. Section 3 places a
duty on courts in relation to the way in which they carry out their function of
interpreting legislation: “So far as it is possible to do so, primary legislation
and subordinate legislation must be read and given effect in a way which is
compatible with the Convention rights”.
9.
A variety of views have been expressed as to what exactly this requires—to
what extent should words be “stretched”, or new words implied, in order to
make a provision fit with the requirements of the ECHR and the case law of
the European Court of Human Rights? Where the words of an enactment are
so plainly contrary to Convention rights that no amount of interpretation can
make them fit, the courts are empowered to make a declaration of
incompatibility under section 4 of the HRA. Such a declaration does not
affect the validity and enforceability of the provision in question and so offers
little practical help to the aggrieved citizen; rather, it is intended to signal to
the executive and Parliament the view of the courts that remedial action
should be taken to repeal or amend the legislation.
10. To date, 17 declarations of incompatibility have been made by the courts.1
Thus far the Government have accepted the outcome of court proceedings
which result in a declaration of incompatibility by undertaking to remedy the
clash between national law and Convention rights.2 Most declarations of
incompatibility related to statutory provisions enacted before the HRA came
into force in October 2000, at which point Parliament began systematic
1 See Appendix 6.
2 The Government have amended the legislation to remedy the incompatibility (or are in the process of
doing so) in 11 of these 17 cases. They are appealing or considering how to remedy the incompatibility in
the remaining six cases.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
9
scrutiny for possible incompatibility through the Joint Committee on Human
Rights (JCHR) and ministers started issuing “statements of compatibility” to
accompany all government bills introduced to Parliament. Since then, some
bills have been amended by Parliament to address human rights concerns,
and two enacted provisions have been subject to declarations of
incompatibility. This may call into question the efficacy of the executive’s
self-scrutiny of policy proposals and, in relation to the incompatible
provisions, parliamentary examination of bills (see Chapter 2).
11. Later in our report, we examine several ways in which the HRA is having an
impact on relations between the judiciary, the executive and Parliament, and
how this situation may develop in the future. In particular, we consider
whether the judiciary should be able to evaluate the general compliance of
bills or recently enacted statutes for their compatibility with Convention
rights in a process of “abstract review”, a procedure that is common in many
jurisdictions throughout Europe. We also consider whether there might be a
greater role for “advisory declarations”, in which the courts could be called
upon to give guidance to the government on Convention rights, or whether a
“committee of distinguished lawyers” could be of use.
The Constitutional Reform Act 2005 and the Concordat
12. In previous reports we have expressed our dismay about circumstances in
which the Government have announced policy or introduced a bill without
apparently being sufficiently aware of the impact of the initiative upon the
fundamentals of the constitution.3 A prime example of confusion about
whether an initiative is a simple “machinery of government” change or a
major constitutional reform was the announcement in June 2003—in the
midst of a Cabinet reshuffle—that the office of Lord Chancellor was to be
abolished and that a Supreme Court of the United Kingdom was to be
established. That announcement took place without any apparent
understanding of the legal status of the Lord Chancellor and without
consultation with the judiciary (or anyone else outside government).
13. Soon after that announcement, Lord Woolf (then Lord Chief Justice) and
Lord Falconer (then Lord Chancellor) started negotiations over the key
principles and principal arrangements that should govern the new situation in
which the Lord Chief Justice rather than the Lord Chancellor would be head
of the judiciary. The outcome of those talks was set out in January 2004 in an
agreement known as “the Concordat” (formally entitled “The Lord
Chancellor’s judiciary-related functions: Proposals”).4 Many aspects of the
Concordat were put on a statutory footing by the CRA, but it is clear to us
that the Concordat continues to be of great constitutional importance.
14. Lord Falconer agreed with this: “it seems to me to be a document of
constitutional significance because, although much of it was then enacted in
the Constitutional Reform Act, it sets out the basic principles on which the
judges and the executive will relate to each other in the future. I have never
known any piece of legislation to be utterly comprehensive; there are bound
to be issues that come up in the future where it is the principle that matters
rather than precise detailed legislation and I believe the Concordat will be
3 See for example our report on the Legislative and Regulatory Reform Bill: Eleventh Report of Session
2005–06 (HL Paper 194).
4 See http://www.dca.gov.uk/consult/lcoffice/judiciary.htm.
10
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
important for that” (Q 41). Similarly, the current Lord Chief Justice, Lord
Phillips, told us: “I would like to think it has an entrenched quality about it.
It has certainly been treated as if it were a constitutional document laying
down the division of functions, now largely of course overtaken by the Act
but not exclusively, and where the Act does not cover something one needs
to go back to the Concordat” (Appendix 8, Q 6).
15. On the question of whether the Concordat might be amended in the future,
Professor Robert Hazell of the UCL Constitution Unit suggested that “it has
the status of a constitutional convention, and all constitutional conventions
are liable to evolve over time in the light of experience and new
circumstances, and I would be very surprised if the Concordat did not itself
evolve partly in its interpretation, as other conventions have evolved, but
partly it could be revisited, and I hope at some point it will be revisited, and
possibly this inquiry could provide the trigger for that. I do not think myself
it is written in tablets of stone” (Q 473).
16. The terms of the CRA itself differed in several respects from the
announcement of 3 June 2003 and the Constitutional Reform Bill as
introduced to the House of Lords in 2004. Part 1 of the CRA is about the
rule of law, a provision to which we return shortly. Part 2 sets out the main
duties and powers of the reformed office of Lord Chancellor, the new role of
the Lord Chief Justice of England and Wales as head of the judiciary, and
other provisions relating to judicial leadership. Part 3 concerns the new
Supreme Court of the United Kingdom. Part 4 deals with judicial
appointments and discipline. Clearly the Concordat and the CRA taken
together have made important changes to the relationships between the
judiciary, the executive and Parliament.
17. As well as redefining formal powers and duties, the CRA and the Concordat
were intended to change the attitudes and perceptions relating to these
leadership roles. Lord Falconer told us that “having a leader of the judges
drawn from the judiciary rather than a politician drives a sense of ownership
and momentum. It gives the judiciary confidence that the pressure for
change, if it comes from the head of the judiciary, comes from the profession
and not from the politicians. Judges have always sought to improve the core
processes” (Q 3). The Lord Chief Justice said that under the changes
brought about by the Concordat and the CRA he and the Lord Chancellor
“become partners in the administration of justice, but as a matter of
constitutional principle the Lord Chief Justice is now the senior partner”.5
18. In her paper for us, Professor Kate Malleson (Professor of Law at Queen
Mary, University of London) forecast that “the idea of a partnership as
expressed in the Concordat may well provide a basis for the future
relationship, but it would be unrealistic to expect it to be a partnership
without tensions. The consequence of a more active judiciary with greater
autonomy will inevitably be a more dynamic relationship between the
branches of government in which the judiciary have a more structured and
active role in defending themselves from criticism and ensuring that the
proper resources and support for the courts are in place” (Appendix 3). That
comment, written in November 2006, has proved to be prescient. The
5 See
http://www.judiciary.gov.uk/publications_media/judicial_views_responses/lcj_evid_cons_affairs_sel_comm_
220507.htm.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
11
creation of the new Ministry of Justice has thrown up issues of profound
disagreement between the Government and the judiciary. By May 2007, the
judiciary were expressing frustration that “in the event there has been no real
change in attitude at all. The Lord Chancellor and his staff in the DCA
continued to act as if he retained primary responsibility for the
administration of justice and had sole responsibility for deciding what
resources should be allocated to this and how they should be deployed”.6
Creation of the Ministry of Justice
19. This brings us to the third milestone in the development of the new
relationships: the creation of the Ministry of Justice, which formally came into
existence on 9 May 2007. Reports of Government plans for a Ministry of
Justice had been circulating for some considerable time. Then in August 2004,
there was speculation that the Home Office (then under David Blunkett)
would be split, with a department for justice (responsible for courts, police,
prisons and probation) and a “department for rights” (with responsibilities for
human rights, immigration and asylum, family law and civil disputes, freedom
of information, constitutional reform, electoral law and devolution).7
20. A Home Office leak in The Sunday Telegraph on 21 January 2007 was the first
public acknowledgement of the current plans. That article appeared to be the
first that either the then Lord Chancellor or the Lord Chief Justice knew of
the plans.8 The new MoJ has taken on all of the responsibilities of the
Department for Constitutional Affairs (DCA) and the following
responsibilities previously held by the Home Office:
• criminal law and sentencing;
• prisons;
• probation; and
• reducing re-offending.
Lord Falconer became the Secretary of State for Justice (the title of Secretary
of State for Constitutional Affairs was abolished), a ministerial office he
continued to combine with that of Lord Chancellor. These two posts were
assumed by Jack Straw MP in the reshuffle after Gordon Brown became
Prime Minister. Appendix 7 sets out the responsibilities of the MoJ as
compared to those of the now defunct DCA, and the respective
responsibilities of the Secretary of State for Justice and the Lord Chancellor.
21. The judiciary have expressed a number of concerns both about the process
by which the MoJ came into being, and about the impact of the new
arrangements upon the administration of justice. These matters are discussed
in detail in Chapter 2.
Criteria for Assessing the Changing Landscape
22. There are a variety of different ways in which the changes mapped out in this
report could be evaluated. Our Committee’s remit is: “To examine the
6 ibid.
7 The Daily Telegraph, 2 August 2004, p 1.
8 Evidence by the Lord Chief Justice and the Rt. Hon. Lord Justice Thomas to the Constitutional Affairs
Select Committee, 22 May 2007, Q 62.
12
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
constitutional implications of all public bills coming before the House; and to
keep under review the operation of the constitution”. For this purpose, the
Committee has defined “the constitution” as “the set of laws, rules and
practices that create the basic institutions of the state, and its component and
related parts, and stipulate the powers of those institutions and the
relationship between the different institutions and between those institutions
and the individual”.9 Our focus for this inquiry has therefore been to
consider how the changing relationships between the judiciary, the executive
and Parliament impinge on core constitutional principles—notably the rule
of law and the independence of the judiciary. The Lord Chancellor has
express statutory duties in relation to both.
The Rule of Law
23. Section 1 of the CRA states that “This Act does not adversely affect (a) the
existing constitutional principle of the rule of law, or (b) the Lord
Chancellor’s existing constitutional role in relation to that principle”. This
provision begs several questions, the first of which is what the “rule of law”
actually means. To assist our understanding of this term, we commissioned a
paper from Professor Paul Craig, Professor of English Law at the University
of Oxford (Appendix 5).
24. Although Professor Craig shed much light on the matter, it is apparent that
despite its inclusion in the statute book, the rule of law remains a complex and
in some respects uncertain concept. Professor Craig drew our attention to
three different meanings. First, “a core idea of the rule of law ... is that the
government must be able to point to some basis for its actions that is regarded
as valid by the relevant legal system”. This is, however, too limited so,
secondly, the rule of law requires that legal rules “should be capable of guiding
one’s conduct in order that one can plan one’s life”. In other words, legal rules
should meet a variety of criteria, including that they should be prospective, not
retrospective; that they should be relatively stable; and that there should be an
independent judiciary. Professor Craig told us that some commentators regard
these “formal” attributes of law to be necessary but not sufficient. So a third
meaning of the rule of law held by some is that it encompasses substantive
rights, thought to be fundamental, which can be “used to evaluate the quality
of the laws produced by the legislature and the courts”.
25. Lord Falconer told us that “the rule of law includes both national and
international law as far as I am concerned, therefore if we remained in breach
of the European Convention then we would be in breach of international
law. I think the rule of law also goes beyond issues such as specific black
letter law. I think there are certain constitutional principles which if
Parliament sought to offend would be contrary to the rule of law as well. To
take an extreme example simply to demonstrate the point, if Parliament
sought to abolish all elections that would be so contrary to our constitutional
principles that that would seem to me to be contrary to the rule of law. The
rule of law goes beyond specific black letter law; it includes international law
and it includes, in my view, settled constitutional principles. I think there
might be a debate as to precisely what are settled constitutional principles
but it goes beyond, as it were, black letter law” (Q 8).
9 Constitution Committee, First Report of Session 2001–02, Reviewing the Constitution: Terms of Reference and
Method of Working (HL Paper 11), Chapter 2.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
13
26. On the question of who is responsible for upholding the rule of law, the Lord
Chief Justice told us that “it is the role of the judiciary, in practice, to uphold
the rule of law, to apply the rule of law, to enforce the rule of law, and to do
that they have to be independent of outside influence. Insofar as it is the
Lord Chancellor’s job to uphold the rule of law, this must be very largely a
job of ensuring that our independence is observed. Equally, there must be
occasions in government where a question may arise as to whether the
conduct that the Government is contemplating is or is not in accordance
with the rule of law, and there, I would imagine, the Lord Chancellor would
have a role to play in his capacity as a minister” (Appendix 8, Q 7). In
relation to the rule of law and the HRA, the Lord Chief Justice explained
that if a court made a declaration of incompatibility “it would be open to the
Government to say, ‘the court has ruled that this is contrary to the Human
Rights Act. Notwithstanding that, we do not intend to comply with the
Human Rights Act on this point’ and that would be contrary to what I would
call rule of law”. That would, however, be the end of the argument “because
Parliament is in that field supreme” (Appendix 8, QQ 9, 10).
Independence of the Judiciary
27. The other constitutional principle of central importance in governing the
relationships between the judiciary, the executive and Parliament is that of
the “independence of the judiciary”. This does not and should not mean that
the judiciary have to be isolated from the other branches of the State. Nor
does it mean that the judiciary—individually and collectively—need to be
insulated from scrutiny, general accountability for their role or properly made
public criticisms of conduct inside or outside the courtroom.
28. The CRA refers to the independence of the judiciary and offers a guide to
some aspects of this principle. Section 3(1) provides that “The Lord
Chancellor, other Ministers of the Crown and all with responsibility for
matters relating to the judiciary or otherwise to the administration of justice
must uphold the continued independence of the judiciary”. Section 3(5)
states that “The Lord Chancellor and other Ministers of the Crown must not
seek to influence particular judicial decisions through any special access to
the judiciary”. The Lord Chancellor also has additional statutory duties
which relate to judicial independence. Under section 3(6), he “must have
regard to—(a) the need to defend that independence; (b) the need for the
judiciary to have the support necessary to enable them to exercise their
functions; and (c) the need for the public interest in regard to matters
relating to the judiciary or otherwise to the administration of justice to be
properly represented in decisions affecting those matters”.
29. Sir Igor Judge, President of the Queen’s Bench Division, told us that it was
important to “appreciate that judicial independence and the proper funding
of the judiciary is actually something that belongs to the community. We do
not sit in judgment in flummery saying, ‘judicial independence for our own
sake.’ The independence of the judiciary is something which is precious to
every single member of the community. You must be able to go into court
and know that the person sitting in judgment is neutral—not on one side or
the other—coldly applying the law that applies to your case. So although
people sometimes think that when we defend judicial independence we are
simply defending our own corner … that is not the case—we simply are not.
The issues which arise here are of great importance to every member of the
public” (Q 379).
14
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
The Scope of our Inquiry
30. Our focus in this inquiry has been on the relationships between the
executive, Parliament and the judiciary of England and Wales. We make only
passing reference to developments in Scotland. Questions about relations
between the Scottish judiciary, the Scottish Executive and the Scottish
Parliament are now matters to be debated and decided north of the border
rather than in Westminster.10 Nor do we deal with the position of the
judiciary in Northern Ireland. We note, however, that there are constitutional
questions common to all three jurisdictions. The fact that they arise in
somewhat different legal systems should not prevent lesson learning.
Although we make some reference to the creation of the Supreme Court of
the United Kingdom—which will be a court for all three of the United
Kingdom’s jurisdictions—it would be premature to attempt any detailed
analysis of the constitutional consequences of establishing this new court. It
is due to begin its work in October 2009.
10 Before the change of administration at the May 2007 elections to the Scottish Parliament, the Scottish
Executive had published two consultation documents and a draft Judiciary (Scotland) Bill. See Scottish
Executive, Strengthening Judicial Independence in a Modern Scotland: A consultation on the unification,
appointment, removal and management of Scotland’s Judiciary (February 2006); and Draft Judiciary (Scotland)
Bill and plans for other aspects of future legislation (February 2007).
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
15
CHAPTER 2: EXECUTIVE AND JUDICIARY
Introduction
31. As explained in Chapter 1, the nature of the relationship between the
executive and the judiciary has changed substantially since the Constitutional
Reform Act (CRA) and the Human Rights Act (HRA) were passed. The
CRA was intended to represent a move away from the traditional “fusion”
model of the British constitution and towards what was said to be a more
explicit separation of powers, with relations between executive and judiciary
thenceforth being governed by the Act itself and the Concordat agreed
between the then Lord Chancellor, Lord Falconer, and the then Lord Chief
Justice, Lord Woolf. The senior judiciary now has an identity which is
distinct from the executive: as the Lord Chief Justice told us, “we, as judges,
are now patently freestanding. The division of powers is quite clear. Now our
negotiations with ministers, in particular with the Lord Chancellor, are
negotiations between the judiciary and the executive and clearly seen to be
so” (Appendix 8, Q 3). Although many of the principles regulating the new
relationship between the judiciary and executive are set down in the
Concordat, it would not be unreasonable to expect that such profound
structural changes, with the judiciary assuming a more distinct identity,
would lead to increased tensions between these two branches of the state.
32. The impact of the HRA upon the relationship between the executive and the
judiciary has been equally significant. As Professor Anthony Bradley argued
in his paper, “the HRA extended the jurisdiction of the courts to deal with
matters that previously were not arguable before a judge … [and] takes the
courts into the examination of questions that, apart from the HRA, would
have been regarded as political questions” (Appendix 4). Similarly,
Professor Vernon Bogdanor has predicted that “issues which, in the past,
were decided by ministers accountable to Parliament will now come to be
decided by the courts”.11 Charles Clarke MP, the former Home Secretary,
agreed that the HRA had “shifted the balance of power towards the
judiciary” (Q 141). The possible ways of resolving the tensions that this
change has created, particularly with regard to anti-terrorism legislation, are
discussed later in this chapter.
33. Summing up the way in which the role of the judiciary has changed in recent
years, Professor Kate Malleson wrote, “the senior judges are now required to
police constitutional boundaries and determine sensitive human rights issues
in a way which would have been unthinkable forty years ago. This new
judicial role is still developing, but … the effect of this trend will be to
reshape the relationship between the judiciary and the other branches of
government” (Appendix 3).
Strained Relationships?
34. None of the witnesses doubted that there had been periods of strain in the
relationship between the executive and judiciary in recent years. Opinion was
however divided on whether these tensions should so far as possible be
avoided, or whether they should be accepted as part of the new checks and
11 See http://www.ukpac.org/bogdanor_speech.htm.
16
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
balances of modern constitutional life. Charles Clarke told us that “there is a
constitutional tension which is not properly resolved and which it would be
beneficial to resolve” (Q 134) and Paul Dacre, editor of the Daily Mail,
believed that “the relationship between the executive and the judiciary has
become a story and it is possibly creating a gladiatorial sense about some of
the reporting that might be causing anxieties on the judicial side” (Q 337).
35. By contrast, Sir Igor Judge, President of the Queen’s Bench Division,
thought that “a degree of tension is healthy” (Q 297). The former Lord
Chancellor, Lord Mackay of Clashfern, agreed with this: “a certain degree of
tension between the judiciary and the executive is inevitable and healthy
because from time to time the judiciary are called upon to adjudicate under
the judicial review procedure and in other ways on actions of the executive,
and there are not many people who completely welcome their activities being
judged, particularly if they are found to have failed”. Indeed, he felt that “the
present situation between the judiciary and the executive is in fact quite a
good relationship; I do not think that, generally speaking, the relationship is
in crisis or anything of that sort” (Q 165).
36. Lord Bingham of Cornhill, the senior Law Lord, took a similar approach in a
recent speech, stating that “there is an inevitable, and in my view entirely
proper, tension between the two [branches]”. He also explained that the
tension “is greater at times of perceived threats to national security, since
governments understandably go to the very limit of what they believe to be
their lawful powers to protect the public, and the duty of the judges to
require that they go no further must be performed if the rule of law is to be
observed”.12
Managing the Tensions
37. Whether or not the current levels of tension in this relationship are
predictable and in general acceptable, they nevertheless have to be managed
and kept in proportion if public confidence is to be maintained in the
independence of the judiciary and the integrity of government. The Lord
Chancellor, with his traditional position as a “bridge” between the executive
and the judiciary, has a particular responsibility to ensure that neither the
government as a whole nor individual ministers exacerbate these tensions
inappropriately. This responsibility is reflected in his key statutory duties as
set out in the oath that he must take under section 17 of the CRA:
• to “respect the rule of law”;
• to “defend the independence of the judiciary”; and
• to “ensure the provision of resources for the efficient and effective support
of the courts”.
We now consider the first and second of these duties; the funding of the
courts is discussed in the next section on constitutional change.
38. The first of these duties was explained by Lord Falconer in the following
terms: “where the Lord Chancellor is faced, within government, with action
which is contrary to the rule of law, national or international, then he has an
obligation to take steps to prevent that action … the office is intended to be a
12 “The Rule of Law” (2007) vol 66 Cambridge Law Journal 67, the text of a lecture delivered at the
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
17
check on activity which might have political attractions but would either
contravene the law, or offend widely accepted constitutional principles”.13
This duty is absolutely central to the role of Lord Chancellor.
39. The second duty is an important component of the first: the Lord Chancellor
must ensure that the principle of judicial independence is not violated. His
duty to “defend” the independence of the judiciary is stronger than the
duty14 of all other ministers to “uphold” that independence, giving him a
special enforcement role in relation to the rest of the government. Lord
Lloyd of Berwick, a former Law Lord, told us that there were two key aspects
to defending judicial independence. The first is “where there is an attempt …
by Government … to restrict in some way the jurisdiction of the courts”, for
example the proposed “ouster” clause in the Asylum and Immigration
(Treatment of Claimants, etc.) Bill in 2004. In such cases, “the Lord
Chancellor’s duty is absolute; he must point out in Cabinet that this would
undermine the independence of the judiciary” (Q 197). Even though the
Lord Chancellor is no longer head of the judiciary, it is essential that he
should remain a jealous guardian of judicial independence in Cabinet.
40. The second aspect of defending the independence of the judiciary, Lord
Lloyd said, was dealing with ministers who attack individual judges. We have
already mentioned that section 3 of the CRA places all ministers under a
duty to “uphold” the independence of the judiciary. Lord Falconer explained
how this duty applied to the question of ministers commenting on individual
cases:
“If you disagree with a decision, say what you are going to do; if you are
going to appeal, say you will appeal; if you are going to change the law,
say you will change the law. If you cannot appeal and cannot change the
law then my advice would be to keep quiet because there is not much
you can do about it … It is a pretty unwise thing for a minister to say
that there is something [wrong with the law] but we are not going to do
anything about it” (QQ 45, 51).
41. Therefore, it is acceptable for ministers to comment on individual cases, but
as Lord Falconer told us, “what is objectionable … is something which
expressly or impliedly says that there is something wrong with these judges
for reaching this conclusion” (Q 50). Lord Lloyd of Berwick agreed with this
approach, saying that “it is open to ministers to say they disagree with
judgments … What I think is intolerable … is a personal attack on judges”
(Q 201). Similarly, Sir Igor Judge said, “if a minister finds there is an adverse
judgment against his department in the administrative court, commenting on
the judge seems to me to be completely unacceptable, but of course the
minister is allowed to say ‘we disagree with the judge’s position and we
intend to appeal’” (Q 284).
42. It seems there is widespread agreement on the limits of what ministers should
and should not say about individual cases, but this does not mean that
ministers will always behave accordingly. The Lord Chancellor’s duty, as the
defender of judicial independence in the Cabinet, is both to ensure that
ministers are aware of the need to avoid attacking individual judges and to
reprimand them if they breach this principle. As Lord Falconer told us, “the
13 See http://www.dca.gov.uk/speeches/2006/sp061020.htm.
14 CRA s 3.
18
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
effect of the Constitutional Reform Act is that I have got an obligation to
speak out both privately and, if necessary, publicly to defend the
independence of the judges” (Q 30). As to whether his performance of this
role had been adversely affected by the fact that he was no longer a judge or
head of the judiciary, he insisted “emphatically not” (Q 3).
43. The Lord Chief Justice has emphasised that this kind of intervention by the
Lord Chancellor is “a most valuable constitutional protection of judicial
independence”, because the only alternative would be for the Lord Chief
Justice himself to intervene publicly, which would risk a high-profile dispute
that would not be “in the interests of the administration of justice”.15 Lord
Mackay of Clashfern added that “the sooner a response is made [by the Lord
Chancellor] the better” (Q 174).
44. So how effectively has this duty been performed by Lord Chancellors since
the advent of the CRA? In fact, it is only quite rarely that ministers attack
individual judges so it may be too soon to pass a definitive judgment on this
point. Nonetheless, there are a number of examples of ministers attacking
judges over the last two decades, suggesting that such situations will arise
again in future. For example, David Blunkett MP (then Home Secretary)
implicitly criticised a judge in 2003 for upholding the right of six asylum-
seekers to receive support from the National Asylum Support Service, writing
a strongly-worded article under the headline “It’s time for judges to learn
their place”.16 Similarly, in 1995 Michael Howard MP (Home Secretary at
the time) reacted to a ruling by Mr Justice Dyson in relation to IRA prisoners
by commenting on the radio that “the last time this particular judge found
against me, which was in a case which would have led to the release of a large
number of immigrants, the Court of Appeal decided unanimously that he
was wrong”.17
45. There has moreover been one case since the CRA was enacted where the
then Lord Chancellor, Lord Falconer, was forced to speak out publicly. The
case concerned the convicted paedophile Craig Sweeney, who was given a
life sentence with a minimum tariff of five years and 108 days. When passing
sentence in the Crown Court at Cardiff in June 2003, Judge Griffith
Williams, the Recorder of Cardiff, explained very clearly how he reached this
tariff and emphasised that Sweeney would only be released “when and if
there is no risk of you re-offending”.18 Nonetheless, the then Home Secretary
(John Reid MP) attacked the sentence as “unduly lenient” and asked the
then Attorney General (Lord Goldsmith) to examine the case as the tariff
“does not reflect the seriousness of the crime”, thereby inappropriately
casting aspersions on the competence of Judge Williams.19 Lord Goldsmith’s
spokesman responded sharply to Dr Reid’s comments, pledging that “the
Attorney will make a decision [on whether to appeal] purely on the merits of
the case and not in response to political or public pressure”.20
46. A detailed timeline of the ensuing events is set out in Box 1. In short, Lord
Falconer did not publicly defend Judge Williams until appearing on the
15 See http://www.judiciary.gov.uk/publications_media/speeches/2007/lcj_220307.htm.
16 News of the World, 23 February 2003, p 6.
17 Daily Mail, 30 September 1995, p 19.
18 Sentencing Remarks, T20067014, 12 June 2006.
19 The Independent, 13 June 2006, p 4.
20 The Guardian, 14 June 2006, p 11.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
19
BBC’s Question Time programme three days after the sentence was handed
down. Even then, he defended Dr Reid’s intervention.21 Lord Falconer
subsequently had to rebuke and extract an apology from his junior minister,
Vera Baird MP, for directly criticising the judge when appearing on a radio
programme.22 The Lord Chief Justice later labelled the attacks “intemperate,
offensive and unfair”,23 whilst the Secretary of the Council of Circuit Judges,
Judge Keith Cutler, told the BBC that “some of the judges felt that there was
quite a silence, and there was no-one actually speaking on behalf of the
judges … We are thinking that we must perhaps change that”.24 Ultimately,
Judge Williams was vindicated when Lord Goldsmith decided not to appeal.
TABLE 1
The Craig Sweeney case: sequence of events
Mon 12 June 2006
Craig Sweeney sentenced to life imprisonment for
abducting and sexually assaulting a three-year-old girl;
eligible for parole in 5 years and 108 days.
Home Secretary John Reid attacks sentence as “unduly
lenient” and asks the Attorney-General to examine the
case as the tariff “does not reflect the seriousness of the
crime”.
The Attorney-General’s spokesman states that “the
Attorney will make a decision purely on the merits of the
case and not in response to political or public pressure”.
He adds that “calling for the file in no way implies that
there will be a reference by the Attorney—still less does it
imply any criticism of the sentencing judge”. It is also
widely reported that the Attorney-General feels that John
Reid’s comments are “not terribly helpful”.
The Chief Crown Prosecutor for South Wales explains the
sentencing guidelines in the context of the Sweeney case.
Tues 13 June
The sentence handed down to Craig Sweeney generates
hostile media coverage. The Sun criticises “the arrogance
of judges in their mink-lined ivory towers who leave the
rest of us to cope with the real crisis of soaring crime” and
adds that “judges are a law unto themselves”.25 The Daily
Express brands the judiciary as “deluded, out-of-touch and
frankly deranged” and “combining arrogance with
downright wickedness”, suggesting that “our legal system
has not only lost touch with public opinion but with
natural justice itself … [sentencing] now bears no relation
at all to the seriousness of the crime”.26
The Prime Minister’s spokesman defends John Reid,
suggesting that it was right “to articulate the concern the
21 Daily Mail, 16 June 2006, p 6.
22 The Daily Telegraph, 20 June, p 4.
23 See http://www.judiciary.gov.uk/publications_media/speeches/2006/sp180706.htm.
24 See http://news.bbc.co.uk/1/hi/uk/5091590.stm.
25 Page 8.
26 Page 12.
20
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
public has”. Jack Straw MP, Leader of the House of
Commons, agrees that it was “perfectly appropriate” for
John Reid to have intervened.
Lord Morris of Aberavon, the former Attorney General,
states that “our courts are not run by Government
ministers … As far as sentencing is concerned, they
[judges] are independent. If he [John Reid] has a concern
… he can amend the acts of Parliament”.
Alun Michael, a Cardiff MP, calls on judges to “wake up
and smell the coffee” and suggests that “some judges
simply aren’t getting it”.
Thurs 15 June
The Lord Chancellor appears on the BBC’s Question
Time. He says “we need to be extremely careful that we
don’t attack the judges on these issues where it is the
system” and “the whipping boys for this have become the
judges and that is completely wrong … If we attack the
judges, we attack an incredibly important part of the
system when it is not their fault … it wasn’t the judge’s
fault”. But he also defends John Reid and claims that he
“did not attack the judge”.
Fri 16 June
Vera Baird QC, Parliamentary Under-Secretary of State at
the DCA, appears on the BBC’s Any Questions? She says,
“it seems to me that this judge has just got this formula
wrong, so I’m critical of the judge for three reasons—one,
starting too low; two, deducting too much for the guilty
plea; and three, getting the formula wrong”.
Sun 18 June
Judge Keith Cutler, Secretary of the Council of HM
Circuit Judges, appears on the BBC’s Broadcasting House.
He says that his colleagues are feeling “pretty low” about
the Sweeney case and adds, “some of the judges felt that
there was quite a silence, and there was no-one actually
speaking on behalf of the judges”. He concludes, “we are
thinking that we must perhaps change that”.
Mon 19 June
Vera Baird is forced to apologise for her comments on
Any Questions? The Lord Chancellor accepts her apology.
Tues 4 July
The Lord Chancellor gives evidence to the House of
Commons Constitutional Affairs Committee. He accepts
that the Sweeney case “has had an impact on
undermining confidence in the judiciary”.
Mon 10 July
The Attorney General decides not to challenge the
sentence imposed by the trial judge, concluding that it was
not “unduly lenient”.
Tues 18 July
The Lord Chief Justice, speaking at the Lord Mayor of
London’s annual judges’ dinner, labels the recent attacks
on judges as “intemperate, offensive and unfair”.
47. When we asked the panel of legal editors about this case, they were highly
critical of the then Lord Chancellor. Frances Gibb, Legal Editor of The
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
21
Times, told us that “the Lord Chancellor should have stepped in much more
quickly to defend judges in the face of some of his colleagues’ comments”,
and Joshua Rozenberg, Legal Editor of The Daily Telegraph, said that the
Lord Chancellor had left the judges “to swing in the wind”. Astonishingly,
Mr Rozenberg had been told by a DCA press officer that it was for the Lord
Chief Justice rather than the Lord Chancellor to speak out on these matters
(Q 92).
48. Although the Lord Chief Justice could have publicly criticised Dr Reid, this
would probably have exacerbated tensions between the executive and the
judiciary at a sensitive time. In fact, the Lord Chief Justice was in Poland at
the time and the responsibility for dealing with the controversy fell to Sir Igor
Judge. He did not speak to Lord Falconer until two days after the sentence
was handed down, and in retrospect admitted that he should have contacted
him “more quickly” (Q 272). The Lord Chief Justice should also have been
more proactive in ensuring that the matter was being dealt with promptly.
49. The Sweeney case was the first big test of whether the new
relationship between the Lord Chancellor and the judiciary was
working properly, and it is clear that there was a systemic failure.
Ensuring that ministers do not impugn individual judges, and
restraining and reprimanding those who do, is one of the most
important duties of the Lord Chancellor. In this case, Lord Falconer
did not fulfil this duty in a satisfactory manner. The senior judiciary
could also have acted more quickly to head off the inflammatory and
unfair press coverage which followed the sentencing decision.
50. It would not be necessary for the Lord Chancellor to reprimand fellow
ministers at all if they always adhered to the principle of not commenting on
decisions of individual judges in an inaccurate and intemperate manner. One
possible way of achieving this would be to amend the Ministerial Code (the
code of conduct and guidance on procedures for ministers, published by the
Cabinet Office) to include reference to the constitutional conventions which
ought to govern public comment by ministers on judges. Dr Matthew Palmer
told us that such rules were included in the New Zealand Cabinet Manual
(Q 522). Although the new Prime Minister has just issued a new Ministerial
Code which does not refer to ministerial comment on judges, he could make
the appropriate additions when the Code is next revised. Lord Mackay of
Clashfern said that this was “an important matter for consideration”,
although he was wary of making the Code too long (Q 170). Lord Falconer
was non-committal, saying that “I am open to that as a suggestion but I do
not think it is that critical” (Q 5). Charles Clarke felt that “getting the
codification of this into a better situation is not the answer” (Q 155).
51. The key to harmonious relations between the judiciary and the
executive is ensuring that ministers do not violate the independence
of the judiciary in the first place. To this end, we recommend that
when the Ministerial Code is next revised the Prime Minister should
insert strongly worded guidelines setting out the principles governing
public comment by ministers on individual judges.
52. Just as ministers ought to demonstrate restraint in commenting on the
judiciary, so judges should (and generally do) avoid becoming
inappropriately involved in public debates about government policy, matters
of political controversy or individual politicians. As the Lord Chief Justice
told us, “Essentially, you would not expect judges to comment on political
22
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
policy” (Appendix 8, Q 41). Lord Falconer elaborated on this sentiment,
suggesting that “it is generally a bad idea for judges to be criticising the
government on policy issues” because “the public want judges to be
unpolitical” and “those very same judges then have to enforce laws about
which it might be said they have expressed disagreement” (Q 58). The Lord
Chief Justice and Heads of Division have a responsibility to ensure that
judges adhere to this principle.
53. However, the Lord Chief Justice, as head of the judiciary, and perhaps other
senior judges with responsibility for specific parts of the justice system, are in
a different position from that of other judges. On occasion, it is necessary for
them to speak out publicly if a particular government policy is likely to have
an adverse impact upon the administration of justice and ministers have
failed to provide a satisfactory response during private consultations.
General Channels of Communication
54. Effective channels of communication between the executive and the senior
judiciary are vital to ensure that the impact of government legislation or
policy proposals upon the administration of justice is fully understood at an
early stage. Such communications are facilitated in a variety of ways. First,
judges serve on a range of bodies with responsibility for the justice system,
for example the National Criminal Justice Board. As Sir Igor Judge said, “it
is no longer … a concomitant of independence that judges should be
isolated” (Q 297).
55. Second, concerns amongst the judiciary about particular government
proposals are conveyed through formal responses to consultations. For
example, as was widely reported at the time, the Council of Her Majesty’s
Circuit Judges gave a largely negative response to the Home Office’s paper
Convicting Rapists and Protecting Victims—Justice for Victims of Rape in January
2007.27 As Sir Igor Judge told us, a negative response to Government
proposals “may create tension” but “we do not expect our response to carry
the day” and “in the end Parliament legislates, and then it does not really
matter what the judges think” because “the judges apply the law that
Parliament has produced” (Q 297).
56. Finally, there are private meetings which take place between ministers and
judges (especially the Attorney General, the Home Secretary—probably now
the Secretary of State for Justice—and the Lord Chief Justice) to discuss the
practicality of particular government policies in terms of the administration
of justice. As Sir Igor Judge explained, “week after week these sorts of
discussions are going on at ministerial level [and] at official level” (Q 297).
Likewise, the former Home Office Minister and new Attorney General,
Baroness Scotland, has confirmed that “Ministers do meet the judiciary
regularly. These are constructive meetings which ensure there is a regular
dialogue between us”.28 If these meetings do not lead to satisfactory mutual
understandings, it should be noted that the Lord Chief Justice can also in
appropriate circumstances ask to see the Prime Minister (Q 68).
27 See for example The Daily Telegraph and The Guardian on 23 January 2007.
28 Letter to The Times, 9 January 2007.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
23
Constitutional Change
57. Effective two-way communication is of particular importance when a
constitutional change is proposed which is likely to impact upon the judiciary
or the administration of justice more broadly. As Lord Justice Thomas told
us: “Our constitution … is based both on statute law and on constitutional
understandings and conventions. Those understandings and conventions
include reliance upon full and appropriate respect for the different positions
occupied by the three branches of government” (Q 374). Therefore, he said,
there should always be “a proper … and detailed examination, so that you
come to a solution that is acceptable across the board to the executive, to the
legislature and to the judiciary” (Q 409). This principle is of even greater
significance in light of the constitutional changes brought about by the CRA
because, in the words of Dr Matthew Palmer, the different arms of
government are still “jockeying for position and taking … time to settle down
as to what their relationship is likely to be” (Q 518). Maximum co-operation
and consultation are therefore essential.
58. We have already noted in Chapter 1 how in 2003 the Government failed to
consult relevant stakeholders—including, astonishingly, the judiciary—before
announcing the proposed constitutional changes which ultimately became
the Constitutional Reform Act 2005 and, after discussion with the then Lord
Chief Justice, the Concordat. Thus the Government’s subsequent decision in
early 2007 to split the Home Office and create a Ministry of Justice (MoJ)
provided an opportunity to ascertain whether they had learnt the lessons of
2003. Whilst the proposals involved a change in the machinery of
government, which is a matter for the Prime Minister, Professor Alan Page
noted that they were also of “very real constitutional significance” (Q 480).
Lord Justice Thomas agreed: “It is our view that the creation of a Ministry of
Justice is not simply a machinery of government change [but one that
involves]
significant
constitutional
change”
(Q 374).
Similarly,
Professor Anthony Bradley told us that the changes were “of constitutional
significance” and affected “the relationship between the Government and the
judiciary that resulted from the Constitutional Reform Act 2005”, but he
also noted that “there is no clear argument to be made against the proposed
Ministry of Justice on constitutional grounds” (Appendix 4).
59. So what constitutional impact might these reforms have? We discuss these
issues in greater detail below, but they can be summarised as follows:
• Role of the Lord Chancellor: the impact of combining in one post the
Lord Chancellor’s responsibility to defend the independence of the
judiciary and some of the Home Secretary’s most controversial duties.
The effect of having a Lord Chancellor in the House of Commons.
• Judicial Review: the impact of the Lord Chancellor being subject to a
much greater number of judicial reviews upon his relationship with the
Lord Chief Justice and the ongoing validity of the Concordat.
• Constitutional Affairs: the impact of constitutional affairs forming a much
smaller part of the Lord Chancellor’s department than previously.
• Funding of the Courts: the possibility of the courts budget being squeezed
due to the demands of the resource-hungry prison system, and the impact
of no longer having a judge on the board of the department.
24
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
60. We agree that the advent of the Ministry of Justice, whilst obviously a
machinery of government change, has significant constitutional
implications.
61. The Government did not make a good start: the Lord Chief Justice found
out about the mooted policy on 21 January 2007 through a Home Office leak
in The Sunday Telegraph, whilst the then Lord Chancellor could only recall
that he “may have known the day before that something was going to be
suggested”.29 The Lord Chief Justice went so far as saying that events
unfolded in this manner because the proposal reflected “an anxiety on the
part of the Home Secretary to clear the decks so that he could really make a
concerted attack on terrorism” and that “it was not a decision that was taken
because it would be an extremely good idea to have a Ministry of Justice”.30
Professor Bradley concurred: “the immediate cause of the Government’s
decision appears to have been concern about the administrative and political
problems of the Home Office, rather than a long-established and fully
reasoned commitment to creating a Ministry of Justice” (Appendix 4).
Whilst this may be true, it is nonetheless important to note that a possible
Ministry of Justice has been on the political agenda for some years and that
there are solid and well-rehearsed arguments behind its creation.
62. After the leak occurred, Lord Justice Thomas told us, the judiciary was
provided by the DCA with “an outline paper detailing possible models for
the Ministry”. The judiciary responded with two working papers setting out
concerns in relation to resources, Her Majesty’s Courts Service (HMCS) and
sentencing (Q 374). On 19 March, just ten days before the Prime Minister
formally announced the Home Office split and the creation of the MoJ, Lord
Falconer and the Lord Chief Justice agreed to set up a working group—
reporting to them both—to resolve these issues of concern.
63. When the Prime Minister made his announcement, the Lord Chief Justice
publicly outlined his concerns about resources and sentencing, warning that
the new Ministry could face “a situation of recurrent crisis” if these concerns
were not addressed. Provided the necessary safeguards were put in place,
however, there would be “no objection in principle” to the proposals.31 He
subsequently explained, “we did make it quite plain that we thought the right
way to go about it was to have in-depth discussions first and to form the
Ministry of Justice afterwards”.32 Similarly, Lord Justice Thomas told us that
“the judiciary considered that the Ministry of Justice should not be brought
into existence until the necessary safeguards had been agreed, given the
constitutional importance of the issues. However, the judiciary’s view was
not accepted” (Q 374). Indeed, Lord Falconer made his position crystal clear
when giving evidence to us on 1 May: “If we cannot reach agreement, that is
not going to stop the Ministry of Justice going ahead on 9 May 2007”
(Q 423). When pressed, he simply said that any outstanding areas of
disagreement would have to “evolve” (Q 426).
29 Evidence by the Rt. Hon. Lord Falconer of Thoroton and Mr Alex Allan to the Constitutional Affairs
Select Committee, 22 May 2007, Q 120.
30 Evidence by the Lord Chief Justice and the Rt. Hon. Lord Justice Thomas to the Constitutional Affairs
Select Committee, 22 May 2007, Q 90.
31 See http://www.judiciary.gov.uk/publications_media/general/ministryofjustice.htm.
32 Evidence by the Lord Chief Justice and the Rt. Hon. Lord Justice Thomas to the Constitutional Affairs
Select Committee, 22 May 2007, Q 82.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
25
64. When we asked Lord Falconer about the way in which this process of
consultation with the judiciary had been conducted, he told us that he was
“completely satisfied it is a sensible way of dealing with it” (Q 413).
However, Professor Terence Daintith did not agree: “If prior consultation
with the judiciary did not take place before the announcement was made, or
before the proposal … was fixed in the mind of government, then I think that
is very unfortunate, and one would hope that in any future case bearing on
the administrative structure relating to the discharge of judicial functions that
omission would not occur”. He felt that the Government had “move[d]
ahead as if it was simply in a pre-2003 situation and nothing more needed to
be done other than to tell people what it was going to do” (Q 479).
65. Clearly the formation of the working group was a positive step, even if it only
came into being slightly more than one month before the MoJ itself.
However, Lord Falconer imposed a number of very tight parameters on the
working group:
• there must be no change to legislation;
• there must be no change to the Concordat;
• there must be no change to the executive agency status of the HMCS;
• there must be no ring-fencing of HMCS’s budget; and
• it is for the Lord Chancellor to decide, subject to his statutory obligations,
on budgetary issues.33
Lord Justice Thomas told us that the judiciary had accepted these
parameters because “we felt that if we were to try and protect our position
we had no alternative” (Q 382). Nonetheless, he added, it was made clear
that “the parameters would have to be revisited if appropriate constitutional
safeguards could not be provided within them” (Q 374).
66. At the time of writing—over two months after the MoJ came into being—the
working group set up by Lord Falconer and the Lord Chief Justice was still
trying to reach agreement. The Lord Chief Justice believed that the
relationship between the judiciary and the MoJ was unsustainable and he
suggested that he “may very well” be getting near the point where he would
be forced to use his “nuclear option” of laying written representations before
Parliament under section 5 of the CRA.34 He went on to explain that the
judiciary had “reached the firm view” that there must be a “fundamental
review of the position in the light of the creation of the Ministry of Justice”,
but he noted that “the Lord Chancellor does not believe it is necessary”.35
Lord Falconer, when questioned on this, would only agree that a review
could happen “in a year or two”.36
67. We are disappointed that the Government seem to have learnt little or
nothing from the debacle surrounding the constitutional reforms
initiated in 2003. The creation of the Ministry of Justice clearly has
important implications for the judiciary. The new dispensation
33 Evidence by the Lord Chief Justice and the Rt. Hon. Lord Justice Thomas to the Constitutional Affairs
Select Committee, 22 May 2007, Q 42.
34 ibid, Q 58.
35 ibid Q 42.
36 Evidence by the Rt. Hon. Lord Falconer of Thoroton and Mr Alex Allan to the Constitutional Affairs
Select Committee, 22 May 2007, Q 145.
26
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
created by the Constitutional Reform Act and the Concordat requires
the Government to treat the judiciary as partners, not merely as
subjects of change. By omitting to consult the judiciary at a
sufficiently early stage, by drawing the parameters of the negotiations
too tightly and by proceeding with the creation of the new Ministry
before important aspects had been resolved, the Government failed to
do this. Furthermore, the subsequent request made by the judiciary
for a fundamental review of the position in the light of the creation of
the Ministry of Justice was in our view a reasonable one to which the
Government should have acceded in a spirit of partnership.
68. Whilst we do not have sufficient evidence to analyse in any great detail the
judiciary’s outstanding concerns about these latest reforms, we do offer some
thoughts and tentative conclusions. First, we consider how the reforms might
affect the traditional role of Lord Chancellor and his ability to defend the
independence of the judiciary effectively. Lord Justice Thomas was
concerned that the Lord Chancellor would become “a quasi-Home
Secretary” and predicted that “the conflicts that are being put into one
person will make it progressively more difficult as future ministers no longer
have the tradition of the office” (Q 383). Clearly, if the roles of Lord
Chancellor and Secretary of State for Justice continue to be combined, there
is potential for conflict between the statutory duty to defend the
independence of the judiciary and the temptation—to which home secretaries
have regularly succumbed—to make intemperate remarks about judges and
their judgments or sentencing decisions.
69. However, Lord Falconer pointed out that the changes “do not relieve [the
Lord Chancellor] of either his responsibilities to the court system or his
duties to the judges” (Q 416). He further commented: “The idea that a
minister … responsible for courts and the judges cannot also be responsible
for prisons, probation and sentencing policy seems completely wrong. It is a
model in many other countries and I would regard my ability to defend the
judges, their independence and a proper functioning court system as is no
way affected by that. That is a critical consideration in me supporting the
idea of a Ministry of Justice” (Q 421). These comments were echoed by
Professor Alan Page, who said “I do not think there is anything objectionable
itself in this combination of responsibilities” (Q 484). Although this is
logically correct, the recent experience of negotiations between the judiciary
and the Lord Chancellor has not been encouraging.
70. Another issue is whether the changes will have an adverse impact on the
status of the Lord Chancellor, making it more difficult for the post-holder to
defend the independence of the judiciary effectively. Traditionally the Lord
Chancellor was a senior lawyer in the House of Lords who had no prospect
of further promotion, and was seen as somewhat removed from the cut and
thrust of everyday politics. However, in light of the increased responsibilities
of the MoJ, assuming that the post remains combined with that of Secretary
of State for Justice, and given the recent appointment of Jack Straw MP as
Lord Chancellor, it seems less likely that future Lord Chancellors will be
members of this House. This makes it more probable that they will be
ambitious for promotion to what are seen as more senior posts, such as
Foreign Secretary or Chancellor of the Exchequer.
71. We believe that the role of Lord Chancellor is of central importance to
the maintenance of judicial independence and the rule of law. Prime
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
27
Ministers must therefore ensure that they continue to appoint to the
post candidates of sufficient status and seniority.
72. A related issue is the impact of the Lord Chancellor/Secretary of State being
subject to a much larger number of judicial reviews—particularly in respect
of prisons—than has been the case in recent years. The Judicial Position
Paper on the MoJ noted that “the relationship between the Lord Chancellor
and the Lord Chief Justice … depends on continuous dialogue, concurrence
and consultation between the two in the field of judicial appointments,
discipline and the administration of justice”.37 Yet the Lord Chief Justice
said, “if I was sitting on an appeal to which [the Lord Chancellor] was a
party, then I could not myself meet with him or enter into discussions with
him while that appeal was pending; one of my other judges would have to”.38
73. Whilst this problem could be overcome if the Lord Chief Justice agreed not
to hear judicial review challenges to the legality of MoJ policies and practices,
Lord Justice Thomas told us that “the Lord Chief Justice must sit in the
major cases—that is his job primarily, to decide them. It would be awful and
very damaging, I think, to the judiciary as a whole that if because of the need
to maintain dialogue under the Concordat with the Lord Chancellor there
was any perceived difficulty with him doing that” (Q 386). Therefore,
although the Lord Chancellor has always been subject to judicial review in
respect of the Legal Services Commission (QQ 419, 432), it will be necessary
to give careful consideration to how his relationship with the Lord Chief
Justice will operate under the new dispensation.
74. Another consideration is whether the former DCA responsibilities for
constitutional affairs will continue to be given the attention that they merit in
the much larger MoJ. Professor Terence Daintith expressed concern about
“how difficult it is to find constitutional affairs within the organisation chart
of the department” and warned that “it is a pretty small part of what the
department does” (Q 493). However, Lord Falconer, supported by other
witnesses including Professor Alan Page, insisted that “issues like human
rights, freedom of information, the constitution of the United Kingdom are
inextricably linked, I think, with the rule of law and the running of the
courts” (Q 444) and therefore rightfully belonged in the MoJ. Moreover, the
new Prime Minister’s decision to propose a series of constitutional reforms
(to be overseen by the new Lord Chancellor and Secretary of State for
Justice) during his first few days in office indicates that constitutional affairs
will remain very much on the agenda. Indeed, the Green Paper setting out
these proposals envisages constitutional reforms stretching into the next
Parliament.39 We sincerely hope that constitutional affairs remain
central to the Ministry of Justice’s responsibilities and are not
downgraded in importance compared to the other duties of the
Ministry.
75. The judiciary’s most serious ongoing concern relates to the funding and
administrative support of the courts. Even before the announcement of the
MoJ, there were problems with the budget-setting process. As the Lord Chief
Justice said recently, the Concordat should have resulted in “a sea-change in
37 See http://www.parliament.uk/documents/upload/Judicial%20Position%20Paper.pdf.
38 Evidence by the Lord Chief Justice and the Rt. Hon. Lord Justice Thomas to the Constitutional Affairs
Select Committee, 22 May 2007, Q 103.
39 See Ministry of Justice, The Governance of Britain, July 2007.
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
the attitude of both HMCS and the DCA, under the Lord Chancellor, to the
role of the Lord Chief Justice in relation to the provision and administration
of court resources” yet “there has been no real change in attitude at all”.
Indeed, “the Lord Chancellor and his staff in the DCA continued to act as if
he retained primary responsibility for the administration of justice and had
sole responsibility for deciding what resources should be allocated to this and
how they should be deployed”. The judges were “side-lined” and “decisions
were taken without our participation and we were then told what was
proposed”.40
76. Whilst the judiciary were in fact attempting to resolve this problem before the
MoJ was announced, the Lord Chief Justice explained that the situation had
been “tolerable so long as the Lord Chancellor was in the traditional and
historic role of that office and so long as providing an administrative system
for the courts remained one of his two most important budgetary concerns;
the other being legal aid”.41 But with the creation of the MoJ, incorporating
responsibilities for the overcrowded and resource-hungry prison system,
there will clearly be far more demands on the Lord Chancellor’s
departmental budget—which potentially means that the courts budget could
be squeezed. As the Lord Chief Justice commented, “whereas before, so far
as the Lord Chancellor was concerned, the running of the courts was really
probably his primary concern, now he has taken on board an enormous
portfolio, and it seems to us, looking at it realistically, that his primary
concern is bound to be prisons and offender management”.42 However, one
of our witnesses, Professor Robert Hazell, a former senior civil servant,
offered an alternative view. He suggested that “the argument about the
greater risk to the Courts Service inside a large Ministry of Justice potentially
cuts both ways. The budget for the Courts Service itself is relatively small …
One could say it is easier to protect the budget of £1 billion within a total
budget of £10 billion, because there are more other votes or lines within the
budget from which savings can be sought. I therefore do not see the
arguments as necessarily all one way or potentially negative” (Q 496).43
77. It is also noteworthy that the creation of the MoJ has resulted in the removal
of a key protection in relation to the financial position of the courts: the
Senior Presiding Judge’s seat on the board of the DCA. Lord Justice Thomas
explained that the Senior Presiding Judge could not take up a seat on the
board of the Ministry because “it would be wholly inappropriate for a judge
to sit on the board of a ministry where there was a conflict between how
much we spend on prisons or how much we spend on the courts” (Q 391).
78. The judiciary’s other concern about courts funding relates to the impact of
judgments against the MoJ. As the Judicial Position Paper noted: “If the
budget of HMCS is not sufficiently independent of, or safeguarded from,
[the] departmental budget, the consequence is that members of the judiciary
40 See
http://www.judiciary.gov.uk/publications_media/judicial_views_responses/lcj_evid_cons_affairs_sel_comm_
220507.htm.
41 ibid.
42 Evidence by the Lord Chief Justice and the Rt. Hon. Lord Justice Thomas to the Constitutional Affairs
Select Committee, 22 May 2007, Q 44.
43 Resource budget for the Home Office 2005/06 out turn: Prison Service £2,034,435,000; Probation
£821,024,000; National Offender Management £790,763,000; Resource budget for the DCA HM Courts
Service 2005/06 out turn £913,166,000.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
29
will find themselves in the invidious position of making decisions which
directly impact on the Lord Chancellor’s ability to fulfil his duty under
section 1 of the Courts Act 2003 [‘to ensure that there is an efficient and
effective system to support the carrying on of the business’ of the courts]”.44
Sir Igor Judge warned that in 20 years a Minister of Justice may “wonder
why on earth one bit of his department is ordering another bit of his
department to spend money and he may take the view that spending the
money is for him”, thus risking a possible breach of judicial independence.
Moreover, he said, an individual whose judicial review fails may suspect that
“the judge was influenced in his decision against him by the fact that there
would be a huge cost imposed on the Ministry, of which the judiciary formed
a part in financial terms” (Q 378).
79. Lord Justice Thomas set out the reassurances sought by the judiciary in
relation to the funding of the courts as follows:
“there must be a fixed mechanism to set the budget and operating plan
with provision for capital expenditure; and, in the event of a dispute
between the judicial and executive branches of government as to the
resources necessary, the arbiter must be the legislature which of course
ultimately votes the budget in accordance with their view as to priorities
of overall expenditure. It is also necessary to ensure that if adjustments
are proposed to the budget during the year (for example by taking
money from the agreed budget to remedy shortfalls elsewhere in the
Ministry), there is a similar open and transparent mechanism which
must be followed before a change is made” (Q 374).
80. When we asked Lord Falconer about the issue of funding, he said, “I
completely accept the need for a properly funded court system” and pointed
to the statutory protections in section 1 of the Courts Act 2003 and sections
1 and 3 of the Constitutional Reform Act 2005 (Q 420). As for the financial
impact of judgments concerning the MoJ, he commented: “the principle that
I [already] deal with is, from time to time, the courts have to make decisions
about the granting or refusal of legal aid that can potentially have an effect on
legal aid funding and that can in its turn have an effect on funding available
to the courts. The judges obviously make these decisions completely in
accordance with the law and the facts. So far as I am concerned, it gives rise
to absolutely no difficulty in my relationship with the judges” (Q 431).
81. Nonetheless, Alex Allan, Permanent Secretary at the MoJ, demonstrated to
the House of Commons Constitutional Affairs Committee that he was taking
the judiciary’s concerns seriously. He revealed that “we have been working
through quite detailed processes to ensure that there is judicial involvement
in all stages [of the budget-setting process] so that some of their concerns
about the Lord Chancellor arbitrarily raiding the court budget to fund some
other portion of the Ministry of Justice’s budget would be alleviated”. He
also said, “we have produced a solution through this process which meets the
particular concerns to ensure transparency of the budget-setting process and
full involvement of the judiciary”, though at the time of writing it was not
clear that agreement with the judiciary on this point had been reached.45
44 See http://www.parliament.uk/documents/upload/Judicial%20Position%20Paper.pdf.
45 Evidence by the Rt. Hon. Lord Falconer of Thoroton and Mr Alex Allan to the Constitutional Affairs
Select Committee, 22 May 2007, Q 183.
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
82. Whilst greater judicial involvement in setting the courts budget might seem
desirable, we do draw attention to a caveat set out by Professor Terence
Daintith. He warned us that he would expect “judges always to be saying
that they wanted more money for the Courts Service than the department or
the Treasury were prepared ab initio to give”, resulting in “a situation where
there was at least an odour of disagreement floating around”. He felt that
there could be “a quite difficult constitutional situation, year by year, in
relation to the fixing of this budget” and suggested that if the judges “can
stay out of it somehow … that would be perhaps the best way through, but
my understanding is that they do not really want to stay out of it” (Q 494).
83. The integrity of the legal system depends on it being properly funded.
We consider it one of the vital tasks of the Lord Chancellor to ensure
that the Courts Service and Legal Aid budgets uphold that integrity.
Whilst it is not for us to suggest how the courts budget should be
agreed in future, we do urge the Lord Chancellor to ensure that it
receives maximum protection from short-term budgetary pressures
upon and within the new Ministry. Moreover, the budget-setting
process must be transparent and the judiciary must be fully involved,
both in determining the process and in its implementation.
84. Finally, we consider the status of Her Majesty’s Courts Service (HMCS), an
issue which has been highlighted by the judiciary in the context of
discussions over the MoJ even though the issue was excluded from the remit
of the working group. Indeed, the Lord Chief Justice felt that the question of
the status of HMCS “has become a fundamental difference between [the
judiciary and the Government]”. He told the House of Commons
Constitutional Affairs Committee that HMCS “owes a duty to its minister,
but we have urged that the duty it owes to its minister is to discharge the
duty that the minister owes to us; that is to provide the judiciary with the
resources that they need to provide the public with an efficient and effective
system of justice”. Therefore, “its primary loyalty really ought to be to us”.46
85. Lord Justice Thomas expanded on this point, telling us that in Ireland, the
Netherlands and Denmark an “autonomous court administration with a
greater degree of judicial participation” had been “very successful”, and
concluding that “a new structure akin to these models is, in the view of the
judiciary, a constitutional safeguard made necessary by the Ministry of
Justice” (Q 374).
86. Reflecting on the motivation behind the concerns expressed by the senior
judiciary in relation to HMCS, Professor Robert Hazell told us that “the
gradual separation between the executive and the judiciary … was always
going to be a process and not a single event, and I believe that it was bound
in time to lead to demands from the judiciary for further separation, and
those demands are now beginning to emerge, so although the Ministry of
Justice has provided the occasion for those demands to be formulated by the
judiciary, I do not myself believe that the Ministry of Justice is itself the
cause”. He also reminded us that “there is a recent trend throughout
northern Europe to introduce greater separation of powers between the
executive and the judiciary, and as part of that to give the judges greater
responsibility and control for managing the court service” (Q 472).
46 Evidence by the Lord Chief Justice and the Rt. Hon. Lord Justice Thomas to the Constitutional Affairs
Select Committee, 22 May 2007, Q 43.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
31
87. We are not convinced by the judiciary’s claims that the creation of the
Ministry of Justice lends any additional urgency to their desire for an
autonomous court administration. However, the status of Her
Majesty’s Courts Service is of central importance to the
administration of justice, and we urge the Government to engage
meaningfully with the judiciary on this issue in order to find a
mutually acceptable way forward.
Human Rights Act
“Dialogue” in Relation to Convention Rights
88. The HRA creates a dispensation under which the executive, Parliament and
the judiciary each has a distinctive role in ensuring that policy and legislation
complies with the European Convention on Human Rights. In relation to bills
introduced to Parliament, the HRA requires ministers to make a statement
that the bill is (or is not) compatible with Convention rights. This statement is
then tested by the Joint Committee on Human Rights (JCHR) and other
committees, and through scrutiny of the bill on the floor of both Houses. After
enactment, aggrieved citizens who allege that they are victims of a violation of
a Convention right may start legal proceedings in the appropriate court. The
interaction between the different branches of the state about Convention rights
can be regarded as a form of “dialogue”, as Dr Matthew Palmer explained
(QQ 502–504). During the course of our inquiry we identified a number of
criticisms about the efficacy of this dialogue, to which we now turn.
Ministerial Compatibility Statements and Parliamentary Scrutiny
89. Section 19 of the HRA requires the minister in charge of a bill in each House
to make a statement, which is in practice published on the face of the bill,
that in his view the provisions of the bill “are compatible with the
Convention rights” or (something that has not yet occurred) to make a
statement to the contrary. Section 19 statements were envisaged to be an
important part of the HRA, enabling the executive to signal to Parliament
and—important from the perspective of our inquiry—to the courts that a
proper assessment of the human rights implications of legislation had been
carried out. Although the terms of the government’s advice as to the
compatibility of proposed legislation are not disclosed, the explanatory notes
to bills summarise the government’s view of which rights are in issue and why
the bill does not breach them.
90. Notwithstanding ministerial statements under section 19, there have been
cases in which it is clear that ministers have initially adopted a far too
optimistic view about the compatibility of provisions in a bill. Although few
statutory provisions enacted since the HRA came into force have been
subject to declarations of incompatibility by the courts,47 on a number of
47 Three provisions enacted after the HRA came into force (in October 2000) have been subject to declarations of
incompatibility, though in one case the declaration was overturned by the Court of Appeal: (i) A and others v
Secretary of State for the Home Department [2004] UKHL 56 in relation to section 23 of the Anti-terrorism, Crime
and Security Act 2001 permitting detention without trial (provision repealed by Prevention of Terrorism Act
2005 which put in place a system of Control Orders); (ii) R. (on the application of Baiai) v Secretary of State for the
Home Department [2007] EWCA Civ 478 in relation to section 19(3) of the Asylum and Immigration
(Treatment of Claimants, etc.) Act 2004 dealing with immigration procedures where sham marriages are
suspected; and (iii) a declaration was made but subsequently overturned by the Court of Appeal in Re MB
[2006] EWCA Civ 1140 in relation to Control Orders under section 2 of the Prevention of Terrorism Act 2005.
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
occasions the Government has had to make or accept major amendments to
bills to bring them into line with Convention rights (as Parliament views
them). For example, they replaced the “ouster” clause in the Asylum and
Immigration (Treatment of Claimants etc.) Act 2004 after strong
representations from the JCHR and others. Where a department has any
doubt about compatibility of a bill with Convention rights, ministers
should seek the involvement of the Law Officers at a formative stage
of policy-making and legislative drafting.
91. Reports of the JCHR are vital in drawing the attention of both Houses to
possible compatibility problems. It is not, however, always clear that the
Committee has sufficient time or information from the Government to carry
out its role as effectively as it would wish. For example, reporting on the
Prevention of Terrorism Bill in Session 2004–05, the Committee said “we
regret that the rapid progress of the Bill through Parliament has made it
impossible for us to scrutinise the Bill comprehensively for human rights
compatibility in time to inform debate in Parliament”.48 The limits of
parliamentary scrutiny also need to be recognised. In many situations the
issue is not so much whether the terms on the face of the bill are compliant,
but whether a minister will subsequently exercise powers conferred by the
bill in a manner which respects Convention rights. Parliament’s control over
the use of such powers, once conferred, is necessarily limited.
92. Parliament’s scrutiny of the executive in relation to human rights is always
likely to be subject to the problems outlined above. The courts have the
central constitutional role in upholding respect for human rights. Is there a
way in which they can help ensure compliance with human rights obligations
and indeed the rule of law? We consider four options in the following pages:
discussions between the Law Lords and members of the executive on issues
of principle; a system of “abstract review” of legislation; the creation of a
committee of “distinguished lawyers” to scrutinise legislation; and greater
use of advisory declarations.
Greater Guidance to the Executive from the Courts?
93. Charles Clarke MP, the former Home Secretary, made it clear to us that he
was angered that the courts had overturned a number of Control Orders
issued under the Prevention of Terrorism Act 2005. He complained that
“after the most intense Parliamentary discussions [on the Act], followed by
the Home Secretary’s decision taken on the basis of detailed legal advice, and
then a series of legal actions up to the Court of Appeal, the Home Secretary
[was] then simply asked to take another stab with no guidance whatsoever as
to how the highest courts would view the legality of his complicated and
difficult decisions”. With the appeal process ongoing, he noted that “more
than five years after 9/11 the legal and Parliamentary circus still moves on”
and claimed that “this is a ludicrous way of proceeding which dangerously
undermines confidence in every aspect of the police and criminal justice
system” (Q 123). He added that “you could end up with a state of affairs
where we end up leaving the European Convention [on Human Rights] as a
result of public pressure” (Q 137).
94. Mr Clarke’s main concern was that “the judiciary bears not the slightest
responsibility for protecting the public, and sometimes seems utterly unaware
48 Tenth Report of Session 2004–05 (HL 68/HC 334), p 3.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
33
of the implications of their decisions for our security”. This criticism of the
judiciary was implicitly echoed by former Prime Minister Tony Blair, who
wrote recently, “again and again in court judgments we were forced to keep
[foreign terror suspects] here” and misleadingly stated that anti-terrorism
measures had been “struck down” by the courts (something which the courts
are not empowered to do) as if his own Government had not introduced the
HRA which the judges were applying.49 Mr Clarke went on to criticise “the
total refusal” of the Law Lords to discuss “the issues of principle involved in
these matters” and suggested that “it is now time for the senior judiciary to
engage in a serious and considered debate about how best legally to confront
terrorism in modern circumstances” (QQ 123, 131). In his view, “the
question of where does the responsibility lie for upholding the rule of law in
the country is a big, mega constitutional issue [and] for the Law Lords to
say, ‘that is not really much to do with us; all we have to do is look at any
particular case’ … is a bit rich” (Q 147).
95. Mr Clarke therefore suggested that the Law Lords should meet with the
Home Secretary to discuss the broad issues of principle involved, in either a
formal or informal setting (QQ 123, 137). He felt that “some proper
discussion about what might or might not be legal would be a very helpful
thing to do because we have spent five years since 9/11 without getting to a
system that works” (Q 145). He added that “the idea that their
independence would be corrupted by such discussions is risible” (Q 123).
96. The Lord Chief Justice later addressed Mr Clarke’s proposal in a speech,
referring in particular to Lord Bingham of Cornhill’s refusal to meet with the
former Home Secretary to discuss Control Orders. Whilst he understood
Mr Clarke’s “frustration” on this point, he warned that “judges must be
particularly careful not even to appear to be colluding with the executive
when they are likely later to have to adjudicate on challenges of action taken
by the executive”.50 Moreover, section 3 of the CRA expressly states that
“the Lord Chancellor and other Ministers of the Crown must not seek to
influence particular judicial decisions through any special access to the
judiciary”. One of the current members of this Committee, the former Lord
Chief Justice Lord Woolf, noted that this was particularly crucial in the case
of the Law Lords because they “have the responsibility of being the final
arbiters on law on the particular facts” (Q 146).
97. Whilst we have sympathy with the difficulties outlined by Charles
Clarke in relation to the Human Rights Act, his call for meetings
between the Law Lords and the Home Secretary risks an
unacceptable breach of the principle of judicial independence. It is
essential that the Law Lords, as the court of last resort, should not
even be perceived to have prejudged an issue as a result of
communications with the executive.
Should there be a System of Abstract Review?
98. In many constitutional systems throughout Europe, procedures exist through
which judges (usually in the form of a constitutional court) may be asked to
provide a prompt ruling on whether proposed or recently enacted legislation
is or is not contrary to basic rights contained in the constitution. Such
49 The Sunday Times, 27 May 2007, p 19.
50 See http://www.judiciary.gov.uk/docs/speeches/lcj260207.pdf.
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arrangements are called “abstract review” because they permit examination
of the terms of legislation in the abstract rather than in a “concrete” situation
arising when the legislation is applied to a particular situation.
99. The precise basis on which abstract review is conducted differs from country
to country, but typically a question is referred to the court by a public body
or a group of members of the legislature. In Germany, the
Bundesverfassungsgericht (Federal Constitutional Court) has jurisdiction to
carry out abstract review of federal legislation referred to it by specified
political institutions. In Spain, the Tribunal Constitucional similarly has
powers of abstract review; proceedings must be started within three months
of the official publication of the law in question. In France, the Constitution
of the Fifth Republic established the Conseil Constitutionnel, a body of nine
distinguished statesmen whose role includes scrutiny of legislation in judicial
proceedings after it has been voted on by Parliament but before it is
promulgated. Such scrutiny must be completed within a month.
100. Mr Clarke alluded to something along broadly similar lines when he
suggested to us that there was a need in the British constitutional system for
“a process whereby the senior judiciary gives a formal opinion upon the
extent to which proposals for legislation comply with the European
Convention before Parliament debates the bill, rather than possibly years
later” (Q 123). Specifically, he suggested that “a senior committee of Law
Lords” should make a judgment on the ministerial statement of compatibility
with the HRA which is a mandatory part of every government bill. In this
way, he continued, “if there were doubt that the Secretary of State’s
certificate was correct amongst the highest lawyers in the land, that would be
made clear at the outset before the whole of the parliamentary process rather
than subsequently”. Mr Clarke did, however, accept that “this would be a
massive constitutional departure … because it would immediately introduce
the judiciary into the legislative process in some sense” (Q 125).
101. This suggestion would indeed be a constitutional innovation if adopted in the
United Kingdom, necessitating a re-examination of current understandings
of parliamentary sovereignty and privilege. Moreover, abstract review in
other countries takes place in constitutional settings (often encompassing
codified constitutions and constitutional courts) that are very different from
the British one.
102. Rulings on the general compatibility of primary legislation with Convention
rights, whilst sounding unusual to the ears of some lawyers in this country,
are however already a feature of the United Kingdom’s devolution
settlement. The Scotland Act 1998 enables the Law Officers to refer the
question of whether a bill or any provision of a bill would be within the
legislative competence of the Scottish Parliament to the Judicial Committee
of the Privy Council (in future, the Supreme Court of the United Kingdom)
for decision.51 Similar provision exists in relation to Assembly Measures
before the National Assembly of Wales.52 These provisions, though not yet
used, enable the Law Lords to assess (among other things) whether the bill
or measure in question is compatible with Convention rights, as it is outside
the competence of the Scottish Parliament and the National Assembly of
Wales to pass legislation that is incompatible with such rights. Further
51 Scotland Act 1998, s 33.
52 Government of Wales Act 2006, s 99.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
35
constitutional reform along these lines cannot therefore be dismissed as
unthinkable. There would, however, be difficulties in designing such a
system.
103. One concern is that abstract review as practised in the countries mentioned
above could compromise the position of the Law Lords or other senior
judges called upon to make findings of compatibility or otherwise. As the
Lord Chief Justice explained recently: “the Strasbourg Court requires that
any individual whose human rights are adversely affected by governmental
action must have a right to challenge that action in a court of law. If the
senior judiciary have already resolved the issue before such a challenge is
made, how can the individual making the challenge have a fair hearing? It is
for this reason that we have separation of powers”.53 Moreover, the
introduction of a system of abstract review risks muddling legislative and
judicial processes and drawing the judiciary into the political arena. This
would run counter to the principle of greater separation of functions which
underpins many aspects of the recent reforms.
104. Another concern relates to the efficacy of “abstract review”. A judicial
assessment of the general compatibility of an aspect of a legislative scheme
with Convention rights may not be able to anticipate how administrative
powers will actually be exercised in particular situations. Bills are often
drafted so as to confer very wide discretionary powers on the Secretary of
State or other public authorities, with the result that Parliament is unable to
make any properly informed assessment of the impact that the exercise of
such powers will have on particular individuals (which is a key consideration
in judging the proportionality of a measure, an assessment that is necessary
in relation to several Convention rights). Moreover, even if a judicial body
has given proposed legislation approval in the abstract, individuals cannot
subsequently be barred from challenging the application of a policy to their
own special circumstances. To do so would not only be contrary to the rule
of law but would most likely also be contrary to Article 6 (right to a fair trial)
and Article 13 (effective remedies for breach of Convention rights) of the
European Convention on Human Rights.
105. A further concern is that creating an opportunity for prior judicial scrutiny of
bills could delay the introduction and implementation of the government’s
proposals, which is likely to be unacceptable in the case of anti-terrorism
policy.
106. Whilst a system of “abstract review” of legislation might seem
attractive in some respects, we believe that it could compromise the
impartiality of the senior judiciary and that it would not in any case
prevent successful challenges under the Human Rights Act to
ministerial exercise of statutory powers.
Review of Bills by a Committee of Distinguished Lawyers
107. If it is generally constitutionally undesirable to involve any part of the
judiciary in the process of making rulings on the compatibility of bills or draft
bills with Convention rights, it may be that a committee of retired Law
Lords, professors, former attorneys general and legal practitioners could
perform this role instead. However, Mr Clarke felt that “those people would
53 See http://www.judiciary.gov.uk/docs/speeches/lcj260207.pdf.
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
not have any greater authority really than Home Office lawyers in that
situation” (Q 128). A committee of legal grandees also risks duplicating the
work already carried out by the JCHR, which has an important role in
scrutinising the compatibility of bills with Convention rights and drawing
concerns to the attention of both Parliament and the executive. Moreover,
the House of Lords as currently constituted has an abundance of
distinguished members of the kind outlined above, and can therefore bring
this expertise to bear during the passage of legislation through the House.
108. We do not believe that a committee of distinguished lawyers tasked
with scrutinising legislation for compatibility with Convention rights
is desirable at this time. If, however, at some future time the
composition of the House of Lords changes, this is an idea that may
well merit further consideration.
Advisory Declarations
109. We have already explained why we do not believe that a system of “abstract
review” would not be appropriate in this country. However, this is not to say
that the courts could not exercise a jurisdiction to make advisory
declarations about the compatibility (or otherwise) of legislative provisions
promptly after enactment. Claims for advisory declarations differ from
“abstract review” in that they are brought using ordinary legal procedures,
arise out of a practical situation and the court hears submissions from two or
more parties. The English courts have long been wary of adjudicating on
hypothetical issues, but in 1994 the Law Commission of England and Wales
recognised that advisory declarations had a role to play and Lord Woolf’s
major review of the civil justice system in 1996 recommended that the High
Court should have “an express power to grant advisory declarations when it
is in the public interest to do so. However, this should be limited to cases
where the issue was of public importance and was defined in sufficiently
precise terms, and where the appropriate parties were before the court”.54
110. Advisory declarations will be inappropriate in some circumstances. Thus the
High Court recently held that it had no jurisdiction to issue an advisory
declaration (in a case brought by the Campaign for Nuclear Disarmament)
on whether Resolution 1441 of the United Nations Security Council (an
instrument of international rather than national law) authorised states to take
military action in the event of non-compliance by Iraq with its terms.55 In
other situations, however, the courts have been willing and able to give
guidance on matters of general public importance. For example, the House
of Lords made a declaration on whether a departmental circular was correct
to state that a pregnancy was “terminated by a registered medical
practitioner”, and therefore lawfully under the Abortion Act 1967, when the
termination is prescribed and initiated by a medical practitioner who remains
in charge of it, and is carried out in accordance with his instructions by
qualified nursing staff.56 Moreover, the Government has recently shown itself
open to the possibility of identifying a test case to bring an issue of
importance about the HRA to the courts.57 Therefore, although not a
54 Department for Constitutional Affairs, Access to Justice: Final Report, July 1996, Chapter 18.
55 Campaign for Nuclear Disarmament v Prime Minister of the United Kingdom [2002] EWHC 2777.
56 Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] A.C.
800.
57 YL v Birmingham City Council [2007] UKHL 27.
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37
panacea, it is possible to envisage situations in which an advisory declaration
may provide an opportunity for the courts to give guidance on a question
relating to a Convention right.
111. We recommend that the Government and the judiciary give further
consideration to how advisory declarations might be used to provide
guidance on questions relating to Convention rights.
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CHAPTER 3: PARLIAMENT AND JUDICIARY
Introduction
112. Section 137 of the CRA, when it is brought into force, will disqualify all
senior serving judges from sitting and voting in the House of Lords.
Although in recent years it has become increasingly rare for the Law Lords
and other senior serving members of the judiciary who hold peerages to
participate in debates in the House of Lords, section 137 will be
constitutionally significant. Moreover, proposals to reform the composition
of the House of Lords may result in there being fewer retired judges in the
House, or possibly none at all. Against this changing background, it is
necessary to consider how the senior judiciary might convey to Parliament
any concerns about legislation or policy.
Laying Written Representations before Parliament
113. The most obvious mechanism to convey such concerns is set out in section 5
of the CRA, which allows the Lord Chief Justice (and the Lord Chief Justice
of Northern Ireland and the Lord President of the Court of Session in
Scotland) to “lay before Parliament written representations on matters that
appear to him to be matters of importance relating to the judiciary, or
otherwise to the administration of justice”.
114. When we asked the current Lord Chief Justice about the circumstances in
which this power should be used, he told us that “this is a power to be
exercised when I really want to draw attention to something that is really
important, not something to be done as a matter of routine. I see this really
as a substitute for what the Lord Chief Justice has been able to do and has
done in the past, which is to address the House on a matter which is
considered sufficiently important to justify that step” (Appendix 8, Q 38).
He went on to describe the power as “a nuclear option” and suggested that it
might be used “if something was proposed by way of legislation that was so
contrary to the rule of law that judges would feel: ‘We have got to step in and
make plain our objection to this’” (QQ 48, 50). Appearing before the House
of Commons Constitutional Affairs Committee on 22 May 2007, the Lord
Chief Justice indicated that in relation to the failure (as he saw it) of the then
Lord Chancellor, Lord Falconer, to provide safeguards following the creation
of the MoJ, he was getting near the point of considering it necessary to use
his section 5 power.58
115. Perhaps unsurprisingly, Lord Falconer also thought that this power should
be a “nuclear option” and “a rarely used power” which would only come into
play if the judiciary failed to obtain satisfaction through prior discussions
with the executive (Q 61). Indeed, he warned that “if the representations
were used on a routine basis … then I think that would greatly reduce the
effect of the power” (Q 65). He also suggested that the Lord Chief Justice
should only use this power in relation to issues “that touch … the
independence or the position of the judiciary”, including inadequate
resourcing of the court system or undue interference in the judicial
58 Evidence by the Lord Chief Justice and the Rt. Hon. Lord Justice Thomas to the Constitutional Affairs
Select Committee, 22 May 2007, Q 58.
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39
appointments system (Q 61). Clearly, however, it would be for the
Lord Chief Justice to decide when to use his “nuclear option”.
116. This leads us to ask a question which appears to have received remarkably
little attention: how should the executive and legislature respond if the Lord
Chief Justice were to exercise his right to lay written representations before
Parliament?
117. First, it would seem essential for the executive promptly to present
Parliament with a formal written response to the Lord Chief Justice’s
concerns, probably in the form of a written ministerial statement.
Lord Falconer seemed to accept this, saying “I would have thought there
would have to be a government response” (Q 63). Furthermore, if the
Lord Chief Justice’s concerns relate to a piece of legislation being considered
by Parliament, it might be considered appropriate for the response to be
made before the bill has progressed too far in either House, in order that the
deliberations of MPs and peers can properly be informed.
118. Second, it is clear that Parliament should now give some serious thought in
advance as to how it might treat any written representations from the
Lord Chief Justice, because it would be inadvisable to wait until a
constitutional crisis arises before choosing an appropriate process to
scrutinise the concerns in question. In our view, it would be desirable for
such representations to be published in Hansard and for the bill or policy in
question to be debated on the floor of the House. It might also be useful for
there to be more in-depth scrutiny of the Lord Chief Justice’s concerns in
order to aid the deliberations of the House. In his paper, Professor Bradley
suggested that “when the chief justice … exercises his new right to lay written
representations before … Parliament, this should lead to a hearing before a
committee” (Appendix 4). It might perhaps be appropriate for this
Committee to undertake such a hearing in this House, and for the
Constitutional Affairs Select Committee (or its successor committee) to do
so in the House of Commons. These hearings might include oral evidence
from the Lord Chief Justice himself, the relevant minister and other key
stakeholders.
119. We recommend that any written representations received from the
Lord Chief Justice under section 5 of the Constitutional Reform Act
2005 should be published in Hansard; that the business managers
should find time for the issue to be debated in the House at the
earliest possible opportunity; and that the Government should
respond to such representations in good time before either House has
finished considering the bill or initiative in question. Further, this
Committee will endeavour to scrutinise any such representations in
time to inform deliberations in the House.
Other Ways of Communicating with Parliament
120. Since the Lord Chief Justice’s power to lay written representations before
Parliament is likely to be a rarely-used “nuclear” option, there need to be other
more routine ways in which lesser concerns can be conveyed to Parliament.
The Lord Chief Justice asked, “might there not be a machinery, if there was a
particular topic that I thought it desirable to ventilate, whereby I could let the
appropriate committee know that if they were interested in hearing about this I
would be happy to discuss it?” (Appendix 8, Q 43). Lord Mackay of Clashfern
agreed with this approach, telling us that “more informal procedures such as
40
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
speaking to committees … are more likely to be productive” (Q 180). We
agree that select committees offer a suitable arena for the Lord Chief Justice,
or other senior judges, to air concerns about the administration of justice and
the impact of legislation and other policy proposals upon the courts and the
judiciary. The Lord Chief Justice already appears before this Committee
annually, but we would always be open to additional appearances as necessary
by him and other senior colleagues, and we trust that other committees of both
Houses would take a similar approach.
The Question of Accountability
121. It is now necessary to ascertain how the judiciary should be held accountable.
Professor Bradley warned 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” (Appendix 4). Therefore, as Professor Vernon
Bogdanor has pointed out, “it is not for Parliament to consider the conduct
of individual judges, nor to hold judges to account for their judgments, nor
to examine the merits of individual appointments or complaints against
judges”.59 In fact, according to Erskine May, “reflections” may only be cast
upon the conduct of judges in Parliament if there is “a substantive motion,
drawn in proper terms”.60
122. Nonetheless, subject to these caveats, Professor Bogdanor noted that “it is a
fundamental principle of a democratic society … that those with power
should be accountable to the people, through their elected representatives”.
We would add that the House of Lords has special responsibilities as a
guardian of constitutional values and should thus play a role here as well.
Professor Bogdanor suggested that judges should not be “answerable” to
Parliament in terms of justifying their decisions, but should “answer” to
Parliament through committee appearances—in other words, they should be
accountable to Parliament not in the “sacrificial” sense, but in the
“explanatory” sense. We find this an interesting argument.61
123. In a previous report, we noted that Parliament was the “apex” of
accountability in the political process.62 This principle is apt here, since the
public is the judiciary’s key stakeholder and Parliament represents the
people. We have therefore sought to identify ways in which Parliament can
help the judiciary to remain accountable. Since the Lord Chancellor is no
longer head of the judiciary and therefore cannot answer to Parliament on its
behalf, Parliament must hold the judiciary accountable in other ways.
The Role of Select Committees
124. Select committees, especially this Committee and the Constitutional Affairs
Select Committee (or its successor committee) in the House of Commons,
59 See http://www.ukpac.org/bogdanor_speech.htm.
60 Erskine May, Twenty-third edition (2004), pp 438–439.
61 See http://www.ukpac.org/bogdanor_speech.htm.
62 Sixth Report of Session 2003–04, The Regulatory State: Ensuring Its Accountability (HL Paper 68-I), pp 20–21.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
41
can play an important role in holding the judiciary to account by questioning
judges in public. Our Committee has already adopted the practice of inviting
the Lord Chief Justice to appear before us on an annual basis, and there is
scope for taking evidence from other senior judges. Committees must be
sensitive to the caveats mentioned above, and the need for the judiciary not
to become involved in overtly political questions, but judges themselves
should be aware of which subject areas they can appropriately discuss.
Indeed, Parliament and the judiciary have agreed a set of internal guidelines
to help judges appearing before committees.
125. It is clearly acceptable for committees to question judges on the
administration of the justice system and the way in which the judiciary is
managed. In addition, it may be desirable for discussions to range beyond
such issues, with judges being asked about their opinions on broad legal
questions such as the use of comparative law, the distinction between
sections 3 and 4 of the HRA and the wider interpretation of the Pepper v
Hart judgment.63 Indeed, given that many judges’ views on issues such as
these are already in the public domain in the form of articles and speeches, it
would be odd if Parliament was denied the opportunity to probe such
opinions in more detail. As Professor Bogdanor commented, judges “should
not object to discussing [their] views in a parliamentary forum, in the cause
of greater public understanding”.64 However, it would be inappropriate for
committees to question judges on the pros and cons of particular judgments.
126. We believe that select committees can play a central part in enabling
the role and proper concerns of the judiciary to be better understood
by the public at large, and in helping the judiciary to remain
accountable to the people via their representatives in Parliament. Not
only should senior judges be questioned on the administration of the
justice system, they might also be encouraged to discuss their views
on key legal issues in the cause of transparency and better
understanding of such issues amongst both parliamentarians and the
public. However, under no circumstances must committees ask
judges to comment on the pros and cons of individual judgments.
A Parliamentary Committee on the Judiciary
127. This leads us to the question of whether there should be a committee tasked
solely with scrutinising the judiciary. In 2004, the Select Committee on the
Constitutional Reform Bill concluded: “the Committee agrees that it is
desirable for a committee of Parliament to act as a bridge between
Parliament and the judiciary, particularly in the event of the senior judges
being excluded from the House. Such a committee should not seek to hold
individual judges to account. The advantages of a statutory committee were
not obvious to the Committee and a clear majority preferred the joint
committee option. We recognise that Parliament itself will wish to consider
this issue further.”65 Three years later, no such committee has been formed.
128. The Lord Chief Justice, when asked about the possible creation of such a
committee, felt that it was “an option that merits consideration” because
63 See http://www.parliament.uk/commons/lib/research/notes/snpc-00392.pdf for further information.
64 See http://www.ukpac.org/bogdanor_speech.htm.
65 Select Committee on the Constitutional Reform Bill, First Report of Session 2003–04 (HL Paper 125-I),
para 420.
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“Parliament is certainly justified in expecting some way of communicating
with the judiciary” (Appendix 8, Q 40). Good communications are indeed
both desirable and necessary, because there must be a mechanism for
effective parliamentary oversight of, and two-way dialogue with, the judiciary
now that there is essentially no judicial representation in the legislature.
However, given that judicial affairs are an important element of the
constitution, it might be argued that this Committee and the Constitutional
Affairs Committee (or its successor committee) in the House of Commons
could provide the fora for such communications. On the other hand, a new
joint committee could lighten the burden on both the judiciary itself and the
two constitution committees.
129. We are not currently convinced of the need for a joint committee on
the judiciary, but we shall keep the situation under review, not least in
evaluating our Committee’s effectiveness in providing the necessary
oversight and contact. The Constitutional Affairs Select Committee
in the House of Commons also has an important role to play.
Post-legislative Scrutiny
130. A recent and interesting development in Parliament is select committee
inquiries into the way in which the courts are interpreting and applying
legislation. In the past three years, the Joint Committee on Human Rights
have twice investigated the courts’ approach to defining the terms “public
authority” and “function of a public nature” in section 6 of the HRA.66 The
Joint Committee reached the conclusion that the leading judgments of the
courts had given those terms an overly narrow meaning and as a result the
true intention of Parliament was not being given effect. With growing
awareness of the importance of post-legislative scrutiny,67 it is likely that in
future similar inquiries will consider the judicial interpretation of
parliamentary legislation in other contexts. However, we are concerned that
post-legislative scrutiny has still not become the “common feature” that we
concluded it should be in an earlier report.68 We repeat our earlier
conclusion that post-legislative scrutiny is highly desirable and should
be undertaken far more generally. This would boost the level of
constructive dialogue between Parliament and the courts.
Confirmation Hearings
131. Our inquiry has not focused on judicial appointments as it would have been
premature to do so: the Judicial Appointments Commission of England and
Wales has only recently begun to operate and the selection commission that
will seek Justices of the Supreme Court of the United Kingdom will not
begin its work until some time after October 2009 (the anticipated date on
which Part 3 of the CRA will come into force, transferring functions from the
Appellate Committee of the House of Lords to the new court).
66 Ninth Report of Session 2006–07, The Meaning of Public Authority under the Human Rights Act (HL Paper
77/HC 410); Seventh Report of Session 2003–04, The Meaning of Public Authority under the Human Rights
Act (HL Paper 39/HC 382).
67 House of Lords Constitution Committee, Fourteenth Report of Session 2003–04, Parliament and the
Legislative Process (HL 173-I); Sixth Report of Session 2004–05, Parliament and the Legislative Process: The
Government’s Response (HL 114); Law Commission, Post-legislative Scrutiny (Cm 6945).
68 Parliament and the Legislative Process, paragraph 193.
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43
132. No account of communications between the judiciary and Parliament would
be complete, however, without mention of confirmation hearings. In a
number of constitutional systems there is a requirement or convention that
appointees to high judicial office appear in front of a committee of the
legislature before being confirmed in their post. However, the possibility of
confirmation hearings (or appearances before a select committee soon after
appointment) was canvassed during the passage of the Constitutional Reform
Bill and firmly rejected.69
133. Nonetheless, we note three developments. The first is the proposed creation
for the first time in the United Kingdom of a statutory requirement for
confirmation hearings, albeit in the very different context of appointments
made by the Mayor of London.70 The second is the announcement in 2006
by the Prime Minister of Canada that his candidate for a Supreme Court of
Canada vacancy (Justice Marshall Rothstein of the Federal Court of Appeal)
had agreed to appear before an ad hoc committee of the Canadian House of
Commons, chaired by a judge and law professor who were not MPs. A
televised hearing was held in which Justice Rothstein answered questions
about himself and his view of the role of the Supreme Court of Canada.71
134. The third and most important development is the proposal of the MoJ in
their Green Paper The Governance of Britain to introduce pre-appointment or
post-appointment committee hearings for certain key public posts. The
Green Paper also refers to judicial appointments in the following terms: “The
Government is willing to look at the future of its role in judicial
appointments: to consider going further than the present arrangement,
including conceivably a role for Parliament itself, after consultation with the
judiciary, Parliament and the public, if it is felt there is a need”.72 However,
when asked about this point, Baroness Ashton, Leader of the House of
Lords, told peers that “to my knowledge there is absolutely no intention” of
introducing pre-appointment hearings for judges.73 Whilst we embrace this
assurance from Baroness Ashton, we are concerned that it does not tally with
the wording of the Green Paper.
135. We urge the Government to clarify their position on the introduction
of appointment hearings for judges at the earliest opportunity, since
this would be an innovation with very profound implications for the
independence of the judiciary and the new judicial appointments
system.
An Annual Report on the Judiciary
136. An additional device to facilitate effective scrutiny would be an annual report
by the judiciary of England and Wales to be laid before Parliament. Although
numerous different parts of the judiciary already produce annual reports,
there would also be value in having one consolidated report on behalf of the
judiciary as a whole. The Lord Chief Justice told us in May 2006 that this “is
something we are considering” (Appendix 8, Q 39) and then on 17 July 2007
69 Select Committee on the Constitutional Reform Bill, First Report of Session 2003–04 (HL Paper 125-I),
paras 412–414.
70 Greater London Authority Bill.
71 The hearing was held on 27 February 2006.
72 The Governance of Britain, pp 28–30.
73 HL Deb 3 July 2007 col 933.
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he announced that the Judicial Executive Board had agreed to produce such
an annual report to be laid before Parliament. Although the mechanism for
laying such a report has yet to be determined, we suggest that it should be
laid under section 5 of the CRA so that it has a formal status.
137. The question of what should be contained in the report is primarily a matter
for the judiciary. However, it might make sense for it to contain an overview
of issues relating to the administration of justice—including the funding of
the courts and the activities of the Judicial Office—and perhaps an account of
concerns amongst the senior judiciary on matters such as sentencing policy.
138. Once the report is laid before Parliament, both Houses should debate it,
perhaps after the report has been considered and commented upon by our
Committee and the Constitutional Affairs Select Committee (or its successor
committee) in the House of Commons. Moreover, Lord Mackay of
Clashfern suggested that upon publication of the report, “the Lord Chief
Justice would probably give a press conference, explaining the report and
answering any questions that might be raised about it by the press” (Q 180).
139. We welcome the Judicial Executive Board’s decision that the Lord
Chief Justice should lay an annual report before Parliament, an
innovation which this Committee had discussed with the Lord Chief
Justice and other senior judges in the course of our deliberations. We
suggest that the annual report should be formally laid under section 5
of the Constitutional Reform Act. We further suggest that the report
might encompass administrative issues and—where appropriate—
areas of concern about the justice system, provided that there is no
discussion of individual cases. We believe that the report will provide
a useful opportunity for both Houses of Parliament to debate these
matters on an annual basis, and for the Lord Chief Justice to engage
effectively with parliamentarians and the public.
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45
CHAPTER 4: JUDICIARY, MEDIA AND PUBLIC
Introduction
140. It is essential that the judiciary should engage effectively with the public in
order to maintain confidence in judges and the parts of the justice system for
which they are responsible. Before considering how this can best be done, it
is sensible to assess how the judiciary are currently perceived by the public.
Public Perceptions
141. Unfortunately, as Professor Dame Hazel Genn explained, there is “little
information … about attitudes to the judiciary in England and Wales”
because “there has been no sustained tradition of investment in research”
(Q 308). However, on the basis of what limited information there is, she told
us that “the public believe or know that the judiciary are not corrupt, that
they do not tell lies, that they are independent, the public trusts them to
apply the law impartially”. And whilst the public also believe that judges are
somewhat out-of-touch, Dame Hazel rightly pointed out that “the fact that
people say, ‘I think they seem a bit out-of-touch, I am not sure that they
really know what goes on in the real world’ is not inconsistent with saying ‘I
trust them’ and I think they do trust them and what we see from … polls is
that by comparison with other institutions they trust the judiciary very much”
(Q 306). Moreover, the advent of the Judicial Appointments Commission,
bringing greater transparency to the selection of judges and attempting to
encourage applicants “from the widest range of backgrounds”, should help to
increase public confidence in the judiciary still further (Q 327).
142. However, whilst public confidence in judges appears generally to be holding
up, attitudes may be shifting. A panel of legal journalists told us that judges
are increasingly seen as “too left-wing, too bleeding liberal, too wet” and
“too pro-human rights and too soft”. They also pointed to a perception that
“the Government tries to get tough and do things to help the public and the
judges sabotage it” (Q 95). Frances Gibb, Legal Editor of The Times, added
that people are more willing to speak out nowadays because “it is not off
limits to attack anyone in authority in the way it might have been 30 years
ago” (Q 100).
143. Similarly, Paul Dacre, editor of the Daily Mail, felt that whilst “the public
still have huge faith in the independence and integrity and incorruptibility of
the British judiciary”, they are becoming “slightly confused” because they see
“political judgments being made by judges which fly in the face of what they
perceive as national interests” and “an increasingly lenient judiciary, handing
down lesser and lesser sentences”. In his view, the public “still have great
faith in the judiciary but there are worries that it is not reflecting their values
and their instincts” (Q 335). To support these claims, Mr Dacre
commissioned an ICM poll in advance of his appearance which found that,
of the more than 1,000 members of the public questioned, only 18 per cent
had faith that the sentences they wanted passed against criminals would be
reflected by the courts whilst 75 per cent felt that sentences were too lenient
(Q 353).
144. In some cases, public attitudes towards the judiciary—whether positive or
negative—can stem from ignorance of how the justice system works. As
46
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Dame Hazel said, “people are [not] taught properly about the justice system,
about the judiciary and about the difference between civil and criminal
courts at school, it is not something that we are brought up on”. As a result,
“people grow up in relative ignorance about what the justice system is there
for and what it does”. Whilst some people will have first hand experience of
the justice system, most people draw their knowledge of the judiciary and
their opinions from the media, and “the danger with that is, of course, that
the reporting in the media and representations on the television are very
selective, they are rather haphazard” (Q 308). Indeed, media coverage of the
judiciary tends to focus on controversial or damaging stories and cases,
because “a story about a judge behaving with outstanding levels of
professionalism in court is not going to make news in the same way as a
doctor performing an operation absolutely beautifully does not make news”
(Q 309).
145. Given their important role in shaping attitudes towards the judiciary and the
justice system, the media have a duty to report proceedings accurately and
fairly. However, certain sections of the media might be said to abuse this
position of responsibility by attacking individual judges or the judiciary as a
whole for carrying out their obligations by implementing the HRA or
following sentencing guidelines. For example, the High Court ruled in May
2006 that the nine Afghan nationals who had hijacked an aeroplane should
have discretionary leave to remain in the United Kingdom under the HRA.
The following day, the Daily Express printed a leader in the following terms:
“Using the European Convention on Human Rights as cover, Mr Justice
Sullivan made a ruling which many will regard as tantamount to a judicial
coup against Parliament … Britain’s out-of-touch judges are increasingly
using the Human Rights Act as a means of asserting their will over our
elected representatives”.74 Similarly, a Daily Mail editorial in 2003 asserted
that “Britain’s unaccountable and unelected judges are openly, and with
increasing arrogance and perversity, usurping the role of Parliament, setting
the wishes of the people at nought and pursuing a liberal, politically correct
agenda of their own, in their zeal to interpret European legislation”.75 This
kind of rhetoric is misleading and wholly inappropriate, showing no regard
for the consequences. As Lord Falconer has said, it has “an impact in
undermining confidence in the judiciary”.76
146. We believe that the media, especially the popular tabloid press, all too
often indulge in distorted and irresponsible coverage of the judiciary,
treating judges as “fair game”. A responsible press should show
greater restraint and desist from blaming judges for their
interpretation of legislation which has been promulgated by
politicians. If the media object to a judgment or sentencing decision,
we suggest they focus their efforts on persuading the Government to
rectify the legal and policy framework. In order to ensure more
responsible reporting, we recommend that the Editors’ Code of
Practice, which is enforced by the Press Complaints Commission, be
regularly updated to reflect these principles.
74 Leader, 11 May 2006.
75 Comment, 20 February 2003.
76 Evidence by the Rt. Hon. Lord Falconer of Thoroton and Mr Alex Allan to the Constitutional Affairs
Select Committee, 4 July 2006, Q 250.
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47
147. Furthermore, as discussed in Chapter 2, Ministers can on occasion worsen
the situation by making inappropriate comments about judges or their
judgments, even though the judges are striving to follow sentencing
guidelines and to apply Government legislation. This kind of behaviour by
any minister is unacceptable. In addition, Frances Gibb of The Times told us
that ministers are all too often “peddling the wrong image” of the HRA
(Q 116), a view which echoes the finding of the Joint Committee on Human
Rights that ministers are making “unfounded assertions about the Act” and
using the Act as “a scapegoat for administrative failings in their
departments”.77 This can increase the public pressure on judges charged with
interpreting an Act which was introduced by this Government, with the
result that, in the words of Paul Dacre, “the perception is that it is the
judges’ fault” (Q 358).
148. It will be clear that we believe it is incumbent on the media as well as
politicians to exercise restraint when commenting on judges or their
judgments. However, this is not to say that the judiciary, particularly with
their greater independence from the executive, can merely stand aloof,
refusing to engage with the media and the public outside the courtroom.
With this in mind, we were disappointed at the reaction of Sir Igor Judge,
President of the Queen’s Bench Division, who told us that he was “very
troubled” about the Judicial Communication Office’s (JCO) ambition to
enhance public confidence in judicial officeholders, explaining that:
“enhancing public confidence is a most difficult concept and it is
particularly difficult … for judges who actually are not in the business of
trying to sell themselves to anyone. If our judgments do not speak for
themselves there is nothing that the Communications Office or the press
office can do” (Q 235).
149. Whilst Sir Igor is of course correct that the words of the judge in the
courtroom are by far the most important way in which the judiciary interact
with the public and the media, Joshua Rozenberg of The Daily Telegraph
commented that “the judges have to work for [respect]. I do not think they
can assume, as perhaps they used to, that it comes automatically with the
role and with the knighthood. That is why public relations is so important
and that is why perhaps it is in the judges’ interests for them to be doing
more in order to retain—and even regain—the public’s confidence” (Q 101).
We have sympathy with this view. The key question is that posed by Lord
Falconer: “how do [the judiciary] connect with, and retain the confidence of
the public, without forfeiting either their independence or their very role in
deciding cases in accordance with the facts before them”?78
The Role of Individual Judges
150. We now consider the ways in which the judiciary can, do and should
communicate with the public and the media. First, to take individual judges
and their judgments, the Lord Chief Justice warned us that “it ought to be
clear from the judgments in question the process of reasons that has led the
judge or judges to reach their conclusions … and it would not be appropriate
for those who have given the judgment or, indeed, for me to go beyond that”
77 Thirty-second Report of Session 2005–06, The Human Rights Act: the DCA and Home Office Reviews (HL
Paper 278/HC 1716), p 3.
78 See http://www.dca.gov.uk/speeches/2006/sp060913.htm.
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
(Appendix 8, Q 54). Similarly, Lord Lloyd of Berwick, a former Law Lord,
told us that “it is highly undesirable that judges should be asked to defend
their decisions” (Q 199). Furthermore, Professor Bradley wrote that “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” (Appendix 4). Paul Dacre agreed that
in the case of controversial decisions, the judge should anticipate the “storm”
(which, we observe, is often media-driven) and go “out of his way to explain
himself” (Q 344). Clearly, then, it is not for individual judges to defend their
individual decisions in the media, but they should make every effort to
explain the reasoning behind their judgments or sentencing decisions in the
clearest possible manner in order to avoid any misunderstanding of the true
position by either the media or the public.
151. Notwithstanding the general rule that judges should not defend their rulings
in the press, a number of them in the High Court and Court of Appeal have
in recent years drafted media releases to accompany their judgments in
particularly high-profile or complex cases. For example, in the case of the
profoundly disabled baby Charlotte Wyatt, where the parents appealed
against a High Court decision on her treatment in the event of a decline in
her condition, a media release provided a summary of the Appeal Court’s
judgment.79 This kind of accessible and concise explanation increases the
transparency of the decision and is to be commended.
152. Another issue is judges speaking publicly outside the courtroom on general
legal and constitutional matters. Lord Mackay of Clashfern’s revocation of
the so-called Kilmuir Rules meant that individual judges were given the
power to decide for themselves whether or not to do so. It can be very
beneficial for individual judges to engage with the public and the media in
this manner. As Frances Gibb has written, “if the judiciary wants the public
to understand how rulings are reached and the constraints under which they
work, they need to speak out—often”.80 The only caveat is that judges should
not comment on overtly political matters or in a way that might compromise
their reputation for impartiality.
153. Whilst it is desirable for judges to speak out on judicial matters in the way
outlined above, a different question is whether they should co-operate with
so-called “human interest” media stories so that the public can find out more
about their lives and their activities in the local community. As Clare Dyer of
The Guardian told us, “people want to know more about the people they are
reading about. They do not see them as remote sphinx type figures as the
judge used to be thought of in the past” (Q 115). Professor Dame Hazel
Genn noted that “there are things that individual judges do on their own
initiative in their local communities, but I think there is scope for them to do
more and I hope that they will do more in the future … It is important that
somebody has responsibility for projecting positive images of the judiciary”
(Q 321). However, Mike Wicksteed, Head of Judicial Communications, felt
that this was not a priority for his office since the focus would be on making
sure that “the work [the judges] do in court is well and accurately reported”.
Sir Igor Judge was more vehement in his opposition to the JCO doing this
kind of work, answering “no, not ever” (Q 227).
79 See http://www.judiciary.gov.uk/publications_media/media_releases/2005/charlotte_ruling.htm.
80 Benchmark Number 4 (July 2006), pp 7–8.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
49
154. We now turn to the issue of judges giving off-the-record briefings to
journalists, a phenomenon which mirrors the spin culture of Westminster
and Whitehall and which appears to be on the increase. Clare Dyer told us
that she had done “a series of interviews with judges about a very political
subject … on conditions of anonymity”, and both Joshua Rozenberg and
Frances Gibb said that they had also reported comments on these terms
(QQ 86, 87). We asked a former Lord Chancellor and a senior judge about
this practice, and they both condemned it in the strongest terms. Lord
Mackay of Clashfern said that he did not like off-the-record briefings “in any
circumstances whatsoever” and added that “if I had something to say that
was worth saying I was prepared to say it and stand by it” (Q 171). Similarly,
Sir Igor Judge told us that “I think it is unacceptable for judges to be making
statements … unattributably” and “if you are going to make any statements
of that kind you should be prepared to accept responsibility for them”. He
concluded, “I think off-the-record briefings … should not happen. That is
my very clear view” (Q 298).
155. Whilst judges should never be asked to justify their decisions outside
the courtroom, it is desirable for them to communicate with the
public and the media on appropriate issues. We therefore strongly
encourage the occasional use of media releases alongside judgments,
as for example in the Charlotte Wyatt case. Further, we cannot see
any reason why judges should not co-operate with the media on
features about their activities outside the courtroom, if they so wish.
However, we are strongly of the opinion that whatever the media
pressure, judges should not give off-the-record briefings.
The Role of the Lord Chief Justice
156. We now consider the role of the Lord Chief Justice in representing the
judiciary in the media and wider public eye, a role which has assumed a
much greater importance in light of the CRA because the Lord Chancellor is
no longer charged with representing the judiciary. As the head of one of the
three arms of the state, it is important that the Lord Chief Justice—with the
help of other judges and the JCO—ensures that the judiciary’s viewpoint is
properly represented and that its profile is maintained. Not only can this help
to increase public understanding of judges and the justice system, it can also
help the judiciary to place constructive pressure on the executive over areas
where there is disagreement or unease. For example, public statements by
the Lord Chief Justice, evidence to our Committee by Lord Justice Thomas
and Sir Igor Judge, and evidence by the Lord Chief Justice to the House of
Commons Constitutional Affairs Select Committee have all played a valuable
role in putting the judiciary’s concerns about the MoJ in the public eye.
157. How then has the Lord Chief Justice interpreted this part of his job thus
far? Joshua Rozenberg of The Daily Telegraph was implicitly critical of the
Lord Chief Justice, telling us that “it is very significant that [Lord Phillips]
has not had a single press conference in more than a year … Lord Phillips
has quite deliberately chosen not to [speak to the media], which is all the
more significant given his increased responsibilities” (Q 87). He further
explained, “I do not think there is any harm in the public knowing a little
bit more about the views of the Lord Chief Justice of the day … given that
he has this important role as head of the judiciary, a role which we do not
really understand. We have no idea how he is exercising that role” (Q 120).
Furthermore, Mr Rozenberg has warned that “in treating the media as
50
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
uniformly hostile, [the Lord Chief Justice] is in danger of bringing about
the very breakdown in relations that he has wrongly identified as now
existing”.81
158. Although the Lord Chief Justice has since held a constructive and
informative press conference, any wariness of such occasions on his part is
perhaps understandable. As Sir Igor Judge told us, at Lord Phillips’ first
press conference in October 2005, “the media questioning of him [was]
designed to elicit some remarks [which would] enable the story to be ‘Lord
Chief Justice at odds with’ or ‘Fury at’ … the Government. That is not
actually a very happy way for a Lord Chief Justice to be interviewed, and [he]
is entitled to take the view that this is not in anybody’s interest” (Q 295). In
any case, Lord Mackay of Clashfern felt that the Lord Chief Justice should
not be distracted from “his principal role of leading the judiciary in
judgment” and Lord Lloyd of Berwick was concerned that an excessive
administrative burden might be preventing the Lord Chief Justice from
sitting as often as he ought (QQ 179, 184).
159. Aside from press conferences, Lord Phillips has delivered a number of
informative and thought-provoking speeches on a range of issues since
assuming the role of Lord Chief Justice.82 Whilst these speeches are of great
interest to those involved in matters legal and constitutional, the ensuing
press coverage is limited except when the Lord Chief Justice says something
controversial. It therefore seems unlikely that his pronouncements are
reaching a wide public audience.
160. It is wholly within the discretion of the Lord Chief Justice to
determine how he can most effectively communicate with the media
and the public. However, we suggest that he may from time to time
need to re-appraise his strategy in light of the new constitutional
relationship between the judiciary, the executive and Parliament. We
believe that, in these days of greater separation of powers, it is highly
desirable for him to ensure that the views of the judiciary are
effectively conveyed to the public.
The Role of the Judicial Communications Office
161. The Judicial Communications Office (JCO), which took over a role formerly
carried out by the press office of the DCA, was established in April 2005 by
Lord Woolf, then Lord Chief Justice, “to increase the public’s confidence in
judges … as part of an overall requirement to enhance public confidence in
the justice system”.83 The current Lord Chief Justice has explained that the
JCO’s specific role is to provide “a full press office service with advice and
support available 24-hours a day, seven days a week”.84 The office has nine
staff including two press officers, although one of those posts is a job share
(Q 242). In this section, we consider how the JCO operates and how it might
do so more effectively in future.
81 Law page of The Daily Telegraph, 12 October 2006.
82 See for example his speech to the Cardiff Business Club on 26 February 2007 and his Judicial Studies
Board Annual Lecture on 22 March 2007.
83 See
http://www.gnn.gov.uk/environment/fullDetail.asp?ReleaseID=152729&NewsAreaID=2&NavigatedFrom
Department=True.
84 See http://www.judiciary.gov.uk/publications_media/speeches/2007/lcj_220307.htm.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
51
162. Mike Wicksteed, Head of Judicial Communications, told us that the JCO
had two elements: the media relations element which “tends broadly
speaking to be reactive, but there is a proactive element in it”, and the
internal communications element (Q 213). It is the first of these that
concerns us here. The Chief Public Information Officer, Peter Farr,
explained the work of the press office as follows:
“We usually know in advance if there is a particularly controversial case
where a judgment is to be handed down; we do not always know on
sentencing, though occasionally a judge will contact us in advance and
say you ought to be aware that I am passing down a sentence in this case
today, either there has been a lot of media interest in it or it is reasonable
to assume that there will be media interest in it. Our approach on those
occasions is to … ensure that there is something available to be given to
the media, either in terms of a judgment or in terms of sentencing
remarks. That is the best prospect really for the media being able to
report things accurately and in context … Often if the media are aware
of the full picture they are much more likely to write a fair and accurate
report” (Q 268).
163. It is undoubtedly helpful for the JCO to provide the media with judgments
and sentencing remarks. However, in the absence of any further explanation,
this may not be sufficient to ensure that the judiciary are properly
represented in the media. For example if, in the Sweeney case (discussed in
Chapter 2), the JCO had done more to drive home the message that the
judge was simply following sentencing guidelines, newspapers such as The
Sun might have moderated their attacks on “the arrogance of judges in their
mink-lined towers”85 and turned their fire on the guidelines in question. As
Clare Dyer of The Guardian told us, “there ought to have been somebody in
the Judicial Communications Office who could have found out that
information and put it out on the day … We would not then have [had] this
idea that there were these terribly lenient judges who were just doing it off
the top of their heads. The public needs to know that they are acting on
guidelines” (Q 89). Similarly, Frances Gibb wrote that during the Sweeney
furore “the media clamoured for a response … and none was forthcoming”.86
164. Unsurprisingly, a number of witnesses felt that the JCO needed to enhance
its media “fire fighting” capabilities. For example, Professor Genn told us
that the issue of “fire fighting … needs to be sorted out because ... sometimes
there is misreporting because the people reporting it do not understand what
is going on”. She insisted that “there needs to be a system for correcting
misapprehensions” (Q 314). Similarly, Paul Dacre of the Daily Mail told us
that “perception is everything and therefore the judges need to address that
… They need to get their message across [because] if you do not get the
message across, you are losing the perception war” by merely giving “a nuts
and bolts background to issues” (QQ 341, 342, 351).
165. What then, aside from providing copies of judgments and sentencing
remarks, might the JCO do to secure more balanced coverage of the judiciary
in the media? We have already suggested that issuing media releases
alongside controversial judgments is desirable. In addition, there is the
option of the Lord Chief Justice speaking to the media, which may on
85 “The Sun says”, 13 June 2006.
86 Benchmark Number 4 (July 2006), p 7.
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
occasion be necessary, but it could be problematic for him to speak about
individual cases given his role in the Court of Appeal.
166. Instead, Joshua Rozenberg suggested that the JCO should “act as the public
spokesman for the judges in a way that they currently do not do” by offering
“a public spokesman who is trained, able and authorised to speak on the
judges’ behalf without having to refer everything that he or she might say to
an individual judge” (Q 88). Such a spokesman would probably need to be a
trained lawyer, something which the JCO currently lacks (Q 243).
Alternatively, it was suggested to us that a panel of senior or retired judges
could fulfil this spokesman role (QQ 89, 103, 109). Spokesmen of this kind
might correct inaccuracies, highlight significant sections in judgments or
sentencing remarks, and possibly even explain complex points of law to
facilitate more informed media coverage.
167. There are some possible snags with giving the JCO this type of spokesman
role, however. Sir Igor Judge felt that “no judge should comment on any
other judge’s decision” because it should all be resolved through the formal
appeals process. He asked, “what happens if the judge’s sentence is
completely barking? It may be way over the top—seven years for a shoplifter.
Do we have a spokesman to say the judge was wrong or do we have a
spokesman to say ‘well let us try and find some justification’?” In conclusion,
he said that “we are responsible for what we say in court and people should
not have to defend us or criticise us publicly until it goes to a higher court”
(Q 277).
168. The Lord Chief Justice, however, seems amenable to a more active JCO:
“the Communications Office offers help and information to the media and is
increasingly called on to comment on news stories before they get into print,
which tends to ensure that the record is straight rather than needs putting
straight”.87 His apparent support for a JCO which does more than merely
distribute judgments and sentencing remarks is most encouraging.
169. In addition to “fire fighting”, it is important that the JCO (alongside the
relevant government departments) should take responsibility for educating
the public and building confidence in the judiciary over the longer-term, as
Professor Genn said (Q 314). It is particularly important that school pupils
should be taught about these issues, and it is encouraging that political, legal
and human rights, civil and criminal law and the justice system are statutory
elements of the citizenship curriculum. The judiciary already play some role
in the teaching of these topics through participating in mock trials, for
example, but there is undoubtedly scope for judges and judiciary officials—
subject to their workload—to do more to inform and enliven the teaching of
this hugely important part of the school curriculum.88
170. No matter how the JCO may develop, it is essential that judges should
comprehend its vitally important role and co-operate accordingly. As Frances
Gibb has written, the JCO “is not an expensive add-on; it is an essential part
of a modern judiciary and must be given the tools to do its job”.89
Specifically, it is important that judges should alert the JCO if there is a
possibility of a judgment or sentencing decision being controversial or
87 See http://www.judiciary.gov.uk/publications_media/speeches/2007/lcj_220307.htm.
88 See also the work of the Public Legal Education and Support (PLEAS) Task Force, which is chaired by
Professor Dame Hazel Genn: http://www.pleas.org.uk/.
89 Benchmark Number 4 (July 2006), p 8.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
53
newsworthy. They should also not shy away from asking the JCO for media
training or advice on presentational issues such as how a speech might be
portrayed in the media. Sir Igor Judge’s statement that he would be “pretty
horrified” if the JCO offered him advice on a speech (Q 226) was perhaps
symptomatic of the fact that many judges have yet to reconcile themselves to
the need for a professional judicial communications capability.
171. We conclude that the judges should consider making the Judicial
Communications Office more active and assertive in its dealings with
the media in order to represent the judiciary effectively. We suggest
that consideration be given to appointing one or more spokesmen
with appropriate qualifications and legal experience who would be
permitted to speak to the media with the aim of securing coverage
which accurately reflects the judgment or sentencing decision.
However, under no circumstances should such spokesmen seek to
justify decisions as opposed to explaining them.
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
CHAPTER 5: CONCLUSIONS AND RECOMMENDATIONS
Executive and Judiciary
Managing the Tensions
172. The Sweeney case was the first big test of whether the new relationship
between the Lord Chancellor and the judiciary was working properly, and it
is clear that there was a systemic failure. Ensuring that ministers do not
impugn individual judges, and restraining and reprimanding those who do, is
one of the most important duties of the Lord Chancellor. In this case, Lord
Falconer did not fulfil this duty in a satisfactory manner. The senior judiciary
could also have acted more quickly to head off the inflammatory and unfair
press coverage which followed the sentencing decision. (Paragraph 49)
173. The key to harmonious relations between the judiciary and the executive is
ensuring that ministers do not violate the independence of the judiciary in
the first place. To this end, we recommend that when the Ministerial Code is
next revised the Prime Minister should insert strongly worded guidelines
setting out the principles governing public comment by ministers on
individual judges. (Paragraph 51)
Constitutional Change
174. We agree that the advent of the Ministry of Justice, whilst obviously a
machinery of government change, has significant constitutional implications.
(Paragraph 60)
175. We are disappointed that the Government seem to have learnt little or
nothing from the debacle surrounding the constitutional reforms initiated in
2003. The creation of the Ministry of Justice clearly has important
implications for the judiciary. The new dispensation created by the
Constitutional Reform Act and the Concordat requires the Government to
treat the judiciary as partners, not merely as subjects of change. By omitting
to consult the judiciary at a sufficiently early stage, by drawing the
parameters of the negotiations too tightly and by proceeding with the
creation of the new Ministry before important aspects had been resolved, the
Government failed to do this. Furthermore, the subsequent request made by
the judiciary for a fundamental review of the position in the light of the
creation of the Ministry of Justice was in our view a reasonable one to which
the Government should have acceded in a spirit of partnership.
(Paragraph 67)
176. We believe that the role of Lord Chancellor is of central importance to the
maintenance of judicial independence and the rule of law. Prime Ministers
must therefore ensure that they continue to appoint to the post candidates of
sufficient status and seniority. (Paragraph 71)
177. We sincerely hope that constitutional affairs remain central to the Ministry of
Justice’s responsibilities and are not downgraded in importance compared to
the other duties of the Ministry. (Paragraph 74)
178. The integrity of the legal system depends on it being properly funded. We
consider it one of the vital tasks of the Lord Chancellor to ensure that the
Courts Service and Legal Aid budgets uphold that integrity. Whilst it is not
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
55
for us to suggest how the courts budget should be agreed in future, we do
urge the Lord Chancellor to ensure that it receives maximum protection
from short-term budgetary pressures upon and within the new Ministry.
Moreover, the budget-setting process must be transparent and the judiciary
must be fully involved, both in determining the process and in its
implementation. (Paragraph 83)
179. We are not convinced by the judiciary’s claims that the creation of the
Ministry of Justice lends any additional urgency to their desire for an
autonomous court administration. However, the status of Her Majesty’s
Courts Service is of central importance to the administration of justice, and
we urge the Government to engage meaningfully with the judiciary on this
issue in order to find a mutually acceptable way forward. (Paragraph 87)
Human Rights Act
Ministerial Compatibility Statements and Parliamentary Scrutiny
180. Where a department has any doubt about compatibility of a bill with
Convention rights, ministers should seek the involvement of the Law Officers
at a formative stage of policy-making and legislative drafting. (Paragraph 90)
Greater Guidance to the Executive from the Courts?
181. Whilst we have sympathy with the difficulties outlined by Charles Clarke in
relation to the Human Rights Act, his call for meetings between the Law
Lords and the Home Secretary risks an unacceptable breach of the principle
of judicial independence. It is essential that the Law Lords, as the court of
last resort, should not even be perceived to have prejudged an issue as a
result of communications with the executive. (Paragraph 97)
Should there be a System of Abstract Review?
182. Whilst a system of “abstract review” of legislation might seem attractive in
some respects, we believe that it could compromise the impartiality of the
senior judiciary and that it would not in any case prevent successful
challenges under the Human Rights Act to ministerial exercise of statutory
powers. (Paragraph 106)
Review of Bills by a Committee of Distinguished Lawyers
183. We do not believe that a committee of distinguished lawyers tasked with
scrutinising legislation for compatibility with Convention rights is desirable at
this time. If, however, at some future time the composition of the House of
Lords changes, this is an idea that may well merit further consideration.
(Paragraph 108)
Advisory Declarations
184. We recommend that the Government and the judiciary give further
consideration to how advisory declarations might be used to provide
guidance on questions relating to Convention rights. (Paragraph 111)
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
Parliament and Judiciary
Laying Written Representations before Parliament
185. We recommend that any written representations received from the Lord
Chief Justice under section 5 of the Constitutional Reform Act 2005 should
be published in Hansard; that the business managers should find time for the
issue to be debated in the House at the earliest possible opportunity; and that
the Government should respond to such representations in good time before
either House has finished considering the bill or initiative in question.
Further, this Committee will endeavour to scrutinise any such
representations
in
time
to
inform
deliberations
in
the
House.
(Paragraph 119)
The Question of Accountability
The Role of Select Committees
186. We believe that select committees can play a central part in enabling the role
and proper concerns of the judiciary to be better understood by the public at
large, and in helping the judiciary to remain accountable to the people via
their representatives in Parliament. Not only should senior judges be
questioned on the administration of the justice system, they might also be
encouraged to discuss their views on key legal issues in the cause of
transparency and better understanding of such issues amongst both
parliamentarians and the public. However, under no circumstances must
committees ask judges to comment on the pros and cons of individual
judgments. (Paragraph 126)
A Parliamentary Committee on the Judiciary
187. We are not currently convinced of the need for a joint committee on the
judiciary, but we shall keep the situation under review, not least in evaluating
our Committee’s effectiveness in providing the necessary oversight and
contact. The Constitutional Affairs Select Committee in the House of
Commons also has an important role to play. (Paragraph 129)
Post-legislative Scrutiny
188. We repeat our earlier conclusion that post-legislative scrutiny is highly
desirable and should be undertaken far more generally. This would boost the
level of constructive dialogue between Parliament and the courts.
(Paragraph 130)
Confirmation Hearings
189. We urge the Government to clarify their position on the introduction of
appointment hearings for judges at the earliest opportunity, since this would
be an innovation with very profound implications for the independence of
the judiciary and the new judicial appointments system. (Paragraph 135)
An Annual Report on the Judiciary
190. We welcome the Judicial Executive Board’s decision that the Lord Chief
Justice should lay an annual report before Parliament, an innovation which
this Committee had discussed with the Lord Chief Justice and other senior
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
57
judges in the course of our deliberations. We suggest that the annual report
should be formally laid under section 5 of the Constitutional Reform Act.
We further suggest that the report might encompass administrative issues
and—where appropriate—areas of concern about the justice system,
provided that there is no discussion of individual cases. We believe that the
report will provide a useful opportunity for both Houses of Parliament to
debate these matters on an annual basis, and for the Lord Chief Justice to
engage effectively with parliamentarians and the public. (Paragraph 139)
Judiciary, Media and Public
Public Perceptions
191. We believe that the media, especially the popular tabloid press, all too often
indulge in distorted and irresponsible coverage of the judiciary, treating
judges as “fair game”. A responsible press should show greater restraint and
desist from blaming judges for their interpretation of legislation which has
been promulgated by politicians. If the media object to a judgment or
sentencing decision, we suggest they focus their efforts on persuading the
Government to rectify the legal and policy framework. In order to ensure
more responsible reporting, we recommend that the Editors’ Code of
Practice, which is enforced by the Press Complaints Commission, be
regularly updated to reflect these principles. (Paragraph 146)
The Role of Individual Judges
192. Whilst judges should never be asked to justify their decisions outside the
courtroom, it is desirable for them to communicate with the public and the media
on appropriate issues. We therefore strongly encourage the occasional use of
media releases alongside judgments, as for example in the Charlotte Wyatt case.
Further, we cannot see any reason why judges should not co-operate with the
media on features about their activities outside the courtroom, if they so wish.
However, we are strongly of the opinion that whatever the media pressure, judges
should not give off-the-record briefings. (Paragraph 155)
The Role of the Lord Chief Justice
193. It is wholly within the discretion of the Lord Chief Justice to determine how
he can most effectively communicate with the media and the public.
However, we suggest that he may from time to time need to re-appraise his
strategy in light of the new constitutional relationship between the judiciary,
the executive and Parliament. We believe that, in these days of greater
separation of powers, it is highly desirable for him to ensure that the views of
the judiciary are effectively conveyed to the public. (Paragraph 160)
The Role of the Judicial Communications Office
194. We conclude that the judges should consider making the Judicial
Communications Office more active and assertive in its dealings with the media in
order to represent the judiciary effectively. We suggest that consideration be given
to appointing one or more spokesmen with appropriate qualifications and legal
experience who would be permitted to speak to the media with the aim of
securing coverage which accurately reflects the judgment or sentencing decision.
However, under no circumstances should such spokesmen seek to justify
decisions as opposed to explaining them. (Paragraph 171)
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
APPENDIX 1: SELECT COMMITTEE ON THE CONSTITUTION
The Members of the Committee which conducted this inquiry were:
Viscount Bledisloe
Lord Carter (until 18 December 2006)
Lord Goodlad
Lord Holme of Cheltenham (Chairman)
Lord Lyell of Markyate
Lord Morris of Aberavon
Baroness O’Cathain
Lord Peston
Baroness Quin (from 19 February 2007)
Lord Rowlands
Lord Smith of Clifton
Lord Windlesham
Lord Woolf
Declaration of interests
Viscount Bledisloe
Barrister (QC) in private practice
Lord Holme of Cheltenham
Chairman, Hansard Society for Parliamentary Government (until
19 June 2007)
Lord Lyell of Markyate
Attorney General 1992–97
Solicitor General 1987–92
Barrister (QC) in private practice
Lord Morris of Aberavon
Attorney General 1997–99
Lord Peston
Chairmen of the Pharmaceutical Price Regulation Scheme Arbitration
Vice President, Speakability
Baroness Quin
Minister of State, Home Office 1997–98
Lord Windlesham
Minister of State, Home Office 1970–72
Lord Privy Seal and Leader of the House of Lords 1973–74
Lord Woolf
Lord Chief Justice of England and Wales 2000–05
Holder of judicial offices
Chairman, Committee of Inquiry into BAE Systems’ business ethics
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
59
APPENDIX 2: LIST OF WITNESSES
The following witnesses gave evidence:
Rt Hon Charles Clarke MP
Mr Paul Dacre, Editor, Daily Mail
Professor Terence Daintith, Emeritus Professor of Law, University of London
Ms Clare Dyer, Legal Editor, The Guardian
Rt Hon Lord Falconer of Thoroton, Lord Chancellor and Secretary of State for
Justice (until 27 June 2007)
Mr Peter Farr, Chief Public Information Officer, Judicial Communications Office
Professor Dame Hazel Genn
Ms Frances Gibb, Legal Editor, The Times
Professor Robert Hazell, Director, Constitution Unit, University College London
Rt Hon Sir Igor Judge, President of the Queen’s Bench Division and Head of
Criminal Justice
Rt Hon Lord Lloyd of Berwick
Rt Hon Lord Mackay of Clashfern
Professor Alan Page, Professor of Public Law and Dean of the School of Law,
University of Dundee
Dr Matthew Palmer
Rt Hon Lord Phillips of Worth Matravers, Lord Chief Justice of England and
Wales
Mr Joshua Rozenberg, Legal Editor, The Daily Telegraph
Rt Hon Lord Justice Thomas
Mr Mike Wicksteed, Head of Judicial Communications, Judicial Communications
Office
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
APPENDIX 3: PAPER BY PROFESSOR KATE MALLESON: THE
EFFECT OF THE CONSTITUTIONAL REFORM ACT 2005 ON THE
RELATIONSHIP BETWEEN THE JUDICIARY, THE EXECUTIVE AND
PARLIAMENT
The Background to the Constitutional Reform Act 2005
The origins of the Constitutional Reform Act lie in the expanding role played by
the higher courts in the UK over the last thirty years. The combined effect of the
growth of judicial review, the development of the EU and, most recently, the
Human Rights Act and devolution has been to give the courts a more central place
in the British constitution. The senior judges are now required to police
constitutional boundaries and determine sensitive human rights issues in a way
which would have been unthinkable forty years ago. This new judicial role is still
developing, but it is clear that the effect of this trend will be to reshape the
relationship between the judiciary and the other branches of government. In the
light of these changes, the main provisions of the Constitutional Reform Act—
reforming the office of Lord Chancellor, establishing a new Supreme Court and
restructuring the judicial appointments process—were designed to bring the
institutional relationships between the judiciary and the other branches of
government into line with the changing substantive role of the courts. In
particular, the reforms were intended to secure the independence of the judiciary
by ‘redrawing the relationship between the judiciary and the other branches of
government’ and putting it on a ‘modern footing’.
Although the timing of the introduction of the Constitutional Reform Bill in 2003
took many by surprise, its content did not. Concerns about the relationship
between the judiciary and the other branches of government had been building up
over a number of years. Where once there had been a general consensus that the
Lord Chancellor’s three roles as member of cabinet, head of the judiciary and
speaker of the House of Lords enhanced the functioning of the political system
and strengthened judicial independence, they increasingly came to be regarded as
a potential source of abuse of executive power.90 In particular, the
Lord Chancellor’s responsibility for appointing the judges became a source of
growing concern as the senior judges’ role in scrutinising government decision-
making increased. Likewise, the presence of the top appellate court in Parliament
had once been widely regarded as an effective means of drawing on the legal
expertise of the top judges during the law-making process so enhancing the quality
of legislation. By the 1990s, however, many Law Lords themselves had come to
regard the lack of separation between the two as problematic as the same senior
judges who participated in passing the laws were increasingly asked to decide on
the conformity of those acts with basic human rights.
By the late 1990s, far fewer voices were heard in support of the argument that
these overlaps between the branches of government were a source of its stability.
Increasingly, the interconnection was seen as endangering judicial independence,
breaching basic constitutional principles and out of step with the rest of Europe.
By the start of the second term of the Labour Government in 2001, the long
debate about these issues had slowly generated broad support across the political
spectrum for a ‘clearer and deeper’ separation of the functions and powers of the
90 See K. Malleson ‘Modernising the Constitution: Completing the Unfinished Business’ Legal Studies Spring
2004.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
61
judiciary from the other branches of government. The decision to embark upon
extensive institutional reform was therefore anticipated, but the provisions set out
in the Constitutional Reform Act were unusual in a number of respects. First, they
ran counter to the trend of recent political developments in that they represented a
conscious shift of power away from the executive. Second, they were forward-
looking, seeking to construct a new constitutional model which anticipated future
needs rather than responding to an immediate perceived problem. In introducing
the reforms the Government made clear that there was no suggestion that the
overlapping constitutional roles of the Lord Chancellor or the presence of the Law
Lords in the House of Lords had, in practice, undermined judicial independence
but rather that the present system held inherent structural weaknesses which might
give rise to such abuse in the future. The third surprising feature of the reforms is
that they explicitly sought to promote constitutional principle above pragmatism.91
Whilst accepting that the previous arrangements had worked effectively, the
changes were designed to restructure the relationship between the judiciary and
the other branches of government so that it would conform more closely to the
concept of the separation of powers. This elevation of principle above pragmatism
is surprising given the traditional value ascribed to ‘what works’ in the British
constitution.92
The Office of Lord Chancellor
Undoubtedly the most controversial element of the reforms when introduced was
the proposals relating to the office of Lord Chancellor. The Bill initially proposed
its complete reformulation into the post of Secretary of State for Constitutional
Affairs. After intense debate, this was amended so that the title and the office of
Lord Chancellor would remain, albeit in much reduced form, and that the Lord
Chief Justice should become the head of the judiciary as President of the Courts of
England and Wales. The principal concern expressed over the removal of the title
of Lord Chancellor was that it would increase the threat to judicial independence
by removing its ability to simultaneously bring together and keep apart the
branches of government. Variously described in terms of a link, a bridge, or a form
of constitutional ‘hinge’ a key element of the office was to facilitate understanding
of the position of the judges to the executive and vice versa. At the same time, the
role was also often characterised as being that of a ‘buffer’; holding the executive at
arms length from the judges: ‘armed with a long barge pole to keep off marauding
craft from any quarter’.93
What is clear is that the retention of the title of Lord Chancellor cannot preserve the
very particular nature of the office. Future Lord Chancellors will not enjoy the
constitutional status which previously attached to that office by virtue of its position at
the crossroads of the three branches of state. Not only is the Lord Chancellor no
longer head of the judiciary, she or he need not be a member of the House of Lords
nor even a lawyer by background.94 Lord Chancellors have traditionally been drawn
91 Lord Chancellor’s Department Select Committee, Minutes of Evidence, 30 June 2003 .
92 Lord Irvine commented when Lord Chancellor: ‘we are a nation of pragmatists, not theorists, and we go,
quite frankly, for what works’. Evidence to the Lord Chancellor’s Department Select Committee, 2 April
2003, Q 28.
93 Lord Hailsham, ‘The Problems of a Lord Chancellor’, The 1972 Presidential Address, The Holdsworth
Club, Faculty of Law, Birmingham University pp 3–5 quoted in Lord Steyn ‘The Weakest and Least
Dangerous Branch of Government’ Public Law, Spring [1997] p 89.
94 The statutory qualifications for the post-holder require only experience as a minister, member of either
House of Parliament, certain types of lawyer, legal academic or such ‘other experience that the Prime
Minister considers relevant’. S 2(2) Constitutional Reform Act 2005.
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
from an elite corps of very senior lawyers respected or at least accepted by both
politicians and the judiciary. The future holders of the post, in contrast, are very likely
to be professional politicians and may well be non-lawyers with limited affiliation to or
understanding of the role of the judiciary. But perhaps more significant in terms of the
impact of the changing role on the relationship between judiciary and executive is the
changing nature of the office in terms of career hierarchy. In the past, the office of
Lord Chancellor was the pinnacle of a distinguished legal and political career. This
fact might have encouraged some to hang on to their place on the woolsack longer
than they should have done, but it had the advantage that the occupant had nothing
to gain or lose in terms of promotion by standing up for the judiciary and suffering
unpopularity amongst his ministerial colleagues or even the Prime Minister. In future
the position will be very different. The Lord Chancellor may be a mid-career
politician inevitably looking for promotion to one of the higher-ranking departments.
Some occupants may be first rate, others may be more mediocre. Either way, it is
unrealistic to expect that a passing minister, in post until the next Cabinet reshuffle,
will be willing or able to defend the judiciary against attacks by more senior Cabinet
colleagues in the same way as Lord Chancellors have done in the past.
One way in which the Constitutional Reform Act sought to address this problem was
to reduce the danger of threats from the executive by translating the political
obligation on the executive to respect judicial independence into a legal one by
including in the Act a provision that the Lord Chancellor and other ministers involved
in the administration of justice must respect judicial independence.95 A key question is
whether the provisions can of themselves ensure that judges are protected from
improper political pressure in their decision-making on a day-to-day basis. In recent
years there have been a number of public expressions of conflict between Home
Secretaries and senior judges in the areas of criminal justice and human rights. This
has led to speculation as to whether judicial independence is under threat and fears
that the Constitutional Reform Act will exacerbate this process by removing the
protective role of the Lord Chancellor. Whether or not these fears are founded
depends partly on the degree of conflict between ministers and judges which is
considered acceptable. Some senior judges themselves have pointed out that a degree
of tension between the executive and judiciary is not only inevitable but healthy in a
democracy.96 The difficulty is distinguishing the short-term ebb and flow of the
relationship between the executive and judiciary from long-term dangers. Lord Irvine
has reported that when Lord Chancellor he had to argue in Cabinet in support of
judicial independence on ‘many, many occasions’.97 Nor is the need for such support
likely to diminish. What is clear is that dismantling the office of Lord Chancellor in its
traditional form will mean that new methods must be established for mediating and
negotiating the relationship between the two branches.
The Concordat
A key element of this new relationship is set out in what has come to be known as
the Concordat.98 Between 2003 and 2005 the Lord Chancellor, Lord Falconer,
95 s 3(1)
96 Lord Steyn Op cit p 93.
97 Lord Chancellor’s Department Select Committee, Minutes of Evidence, 2 April 2003, Q 29.
98 Parts 2 and 4 of the Constitutional Reform Act include the arrangements set out in the Concordat. The full
text of the Concordat can be found in the government paper “Constitutional Reform: The Lord
Chancellor’s judiciary-related functions: Proposals” which was reproduced at Appendix 6 of the report of
the Select Committee on the Constitutional Reform Bill at:
http://www.publications.parliament.uk/pa/ld200304/ldselect/ldcref/125/12502.htm.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
63
and the then Lord Chief Justice, Lord Woolf, met regularly in private to determine
how the many roles previously undertaken by the Lord Chancellor would be
carried out.99 Their final agreement was incorporated directly in the Constitutional
Reform Act. Before 2005, it was generally unnecessary to articulate whether the
Lord Chancellor was acting in his judicial or executive capacity when carrying out
a particular function. It was not clear whether, for example, decisions concerning
the deployment of judges were a task which the Lord Chancellor performed as the
head of the judiciary or a member of the executive. Under the terms of the
Concordat it is now explicitly established that this role is for the Lord Chief Justice
and therefore falls within the control of the judiciary. Perhaps the most interesting
aspect of the Concordat was that it is not simply a carve up of power between the
branches of government but is intended to create a form of partnership in which
the two branches of government share in the decision-making affecting the
governance of the judiciary and the running of the courts through the allocation of
decision-making powers ‘with appropriate constraints and mutual consultation.’100
Most decisions concerning the management of the courts and the judiciary are
now formally ascribed to either the Lord Chief Justice or the Lord Chancellor, but
in almost all cases there is a duty to consult with the other or obtain their
agreement. For example, the overall number of judges is to be determined by the
Lord Chancellor after consultation with the Lord Chief Justice because: ‘real and
effective partnership between the Government and the Judiciary is seen as
paramount, particularly in this area’.101 Similarly, the Lord Chief Justice has
responsibility for judicial discipline but may only warn or reprimand a judge with
the agreement of the Lord Chancellor.102 What has been created is an institutional
relationship which envisages two separate but equal branches working together to
manage the courts and judiciary. How, in practice, this will work in the future
remains to be seen. The Concordat was drafted by two individuals who shared
similar career backgrounds, values and priorities. Given the changing role of the
office of Lord Chancellor, it will need to be robust enough to function effectively
in the context of a Lord Chief Justice and a Lord Chancellor who stand very
clearly in different branches of the Government. For this new ‘separate but equal’
system to work, substantial changes are therefore needed to the governance
structure of the judiciary.
The Governance of the Judiciary
The transfer of such a wide range of roles into the sole or joint responsibility of the
Lord Chief Justice requires a major change in the nature of the judicial support
system. Whereas the Lord Chancellor has an entire government department at his
disposal, until recently the Lord Chief Justice has had only minimal management
and administrative back-up. The traditional approach to judicial governance has
99 This long private conversation was described by Lord Woolf in the following in his valedatory speech in
2005 as one of ‘almost continuous dialogue’ over two years. Royal Courts of Justice 29 July
http://www.dca.gov.uk/judicial/speeches/lw290705.htm.
100 Lord Falconer commented that the Concordat: ‘… lays down the right kind of partnership between the
executive and the judiciary, with clear roles for each within the framework of the separation of powers of
both.’ HL Deb 12 February 2004 col 1216. Lord Woolf similarly noted that: ‘A spirit of partnership
between the judiciary, the legislature and the executive is essential if the judiciary are to meet the changing
needs of society’. Squire Centenary Lecture, Cambridge University, 3 March 2004. See also speech of the
Senior Presiding Judge, Lord Justice Thomas, entitled ‘The judicial and executive branches of government:
a new partnership’ given in 2005. Available at http://www.dca.gov.uk/judicial/speeches/sp051110.htm.
101 Ibid p 11.
102 S 108(2)
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
been one which is informal and light-touch. As the court system has expanded
rapidly, the administrative roles undertaken by judges have grown in an ad-hoc
fashion. By and large, senior judges have simply absorbed additional management
roles on top of their adjudicative functions on an ex-officio basis with very limited
administrative support. Nor has there been a formal or permanent structure for
collective decision-making within the judiciary. This situation arose not simply as a
result of lack of resources or a failure by the judiciary to catch up with the
governance needs of a greatly expanded judiciary. Rather the arrangements were
partly a consequence of a particular vision of judicial independence; one which
prioritises the need for judges to be free, not just of external interference, but of
interference from other judges. It was for this reason that Lord Taylor when Lord
Chief Justice objected to the introduction of performance appraisal in the judiciary
on the grounds that it would: ‘clearly endanger the fundamental independence of
individual judges, not only from the executive but also from each other’ (emphasis
added).103 Thus although the judiciary is a rigidly hierarchical structure in terms of
the authority of adjudicative decision-making, it has always pursued an ideal of a
flat management structure in which the individual judges retain the greatest
possible degree of autonomy over their working lives. Whilst in practice it has been
recognised that the Lord Chancellor and the Lord Chief Justice were required to
make management decisions for the judiciary as a whole, this has been regarded as
a task performed by them as ‘first among equals’. For this reason, the judiciary has
traditionally been highly sensitive to claims that any senior judge speaks for the
judiciary collectively. Indeed, the notion that there is such a thing as ‘the view of
the judiciary’ is widely rejected by many judges who pride themselves on the fact
that the only area that judges agree upon is that of judicial pensions.
Yet despite this strong culture of individualism, the move to a more structured
governance within the judiciary had begun before the Constitutional Reform Act.
By necessity, the rapid expansion in size of the judiciary had led to the expansion
in the number and formality of senior administrative positions with named and
appointed posts such as the Vice President of the Queens Bench Division, Deputy
Lord Chief Justice, and the Head of Civil Justice. Similarly, the Judges’ Council,
which until relatively recently was a virtually moribund institution, has been
revitalised in order to play a central role in the new governance structure. Because
membership is drawn from all the different levels of the judiciary, including more
recently members of the House of Lords/Supreme Court,104 the Council has the
potential to play a vital role in representing the interests of the judiciary as a whole.
Equally important is the newly formulated Judicial Executive Board made up of
seven senior judges which appears to be envisaged as a sort of judicial Cabinet. It
meets monthly and its core function is to enable the Lord Chief Justice to make
policy and executive decisions through it. Administrative back-up will now be
provided through a new body, the Judicial Office of England and Wales which has
60 staff including a communications office.
The relatively ad hoc creation of this governance structure from a mixture of new
and refurbished institutions raises a number of questions about both judicial
accountability and judicial independence. What, for example, are the respective
remits in terms of policy-making of the Judges’ Council and the Judicial Executive
Board? How do their roles relate to each other? Where are the rules governing
103 From a speech at the London School of Economics, 27 July 1993.
104 See Lord Woolf’s comments on the resuscitation of the Judges’ Council from being a ‘semi-moribund
institution.’ Current Challenges in Judging 5th Worldwide Common Law Judiciary Conference, Sydney,
Australia, 10 April 2003.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
65
their powers and membership laid down? Who determines these? What, for
example, is the process for selecting the representatives from each judicial level for
the judicial council? Are they elected or appointed? If the latter, what are the
criteria for selection and who chooses them? Clearly many questions remain about
the new judicial governance structure, but what is certain is that the overall result
of the changes will be a greater concentration of power in the hands of the senior
judiciary. This outcome is probably inevitable and may also be desirable as a
means of securing judicial independence, but it is not unproblematic both in terms
of judicial independence and accountability. These changes represent very real
structural and ideological changes within the judiciary.
The Judicial Appointments Process
Under the previous judicial selection arrangements the power of appointment had,
in practice, rested with the Lord Chancellor who made his decision after
consultation with the senior judges. For appointments to the Court of Appeal and
the House of Lords, the decision formally rested with the Prime Minister on the
advice of the Lord Chancellor but the extent to which different Prime Ministers
engaged with the process was hard to assess since the process of consultation
between the Lord Chancellor and Prime Minister was always regarded as
confidential. It was in relation to these upper rank judicial appointments that
opinion was most sharply divided over the new provisions. Many members of the
judiciary argued that it was essential to remove all executive involvement in
selecting the senior judiciary since it was at this level that the pressure to
manipulate would be greatest. Others argued that it was precisely in relation to
these appointments, where the judges were engaged in high-level decisions with
policy-making implications, that there should be some real link to the democratic
process and that the Lord Chancellor should be more than just a rubber stamp.
Initially the Government supported the latter view in relation to the Supreme
Court appointments and the Bill provided that the Supreme Court commission
would nominate 2–5 names for the Lord Chancellor to choose from, so ensuring a
degree of political input. In the end, however, the Bill was amended so that both
the Supreme Court commission and the Judicial Appointments Commission for
England and Wales were given the ultimate decision-making power, being
required to recommend one name which the Lord Chancellor could only reject in
limited circumstances. The effect was to remove the danger of improper political
interference from the system but it also removed the opportunity for democratic
involvement in the selection of public decision-makers.
One way in which the democratic deficit caused by the removal of the executive
from the appointment process might have been countered would have been to
include the legislature in the process. Currently, Parliament plays no role in
judicial appointments, though it has the ultimate responsibility for removing errant
senior judges. This power relates solely to judges of the High Court and above,
who can be dismissed by the Queen if both Houses of Parliament vote for their
removal, though this is a power which has only been exercised once.105 The
proposal that judges could be called before Parliament as part of the appointments
process was considered by Parliament during the passage of the Bill and rejected.
One explanation for this rejection lies in a widely held view of the US Senate
confirmation hearings as invading the privacy of individual candidates and
undermining judicial independence. Critics of this aspect of the US judicial
appointments process have argued that the highly partisan nature of the process is
105 In the case of an Irish judge found to have embezzled court fees in 1830.
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
such that the hearings can sometimes be little more than a choreographed dance in
which very little useful information is revealed. However, the decision of the
Canadian Parliament to introduce nomination hearings for their Supreme Court
judges in March 2006 as part of a reform designed to reduce party political
influence, illustrates the growing awareness outside the UK of the need to explore
new ways to enhance democratic accountability in the judicial appointments
process whilst at the same time removing political patronage. The debate in
Canada which took place before the hearings were introduced almost exactly
mirrored that which took place at the time of the passage of the Constitutional
Reform Act. The first Canadian parliamentary Supreme Court hearing was widely
regarded to have been a success and future hearings will no doubt be watched with
interest. It is possible therefore, that this is an option that may be revisited in the
UK at some future date.
The other effect of the removal of any substantive input from the elected branches
of government into the judicial appointments process was to increase the
significance of the membership of the new appointments commissions and in
particular the role of the lay members. Their function is a vital one in balancing
the interests of the legal and judicial members of the commissions and mitigating
the danger of cloning which inevitably arises when appointment is made by those
already doing the job. Since the need for greater diversity in the composition of the
judiciary was a driving force behind the decision to establish the new system, the
lay members’ ability to challenge established approaches and develop innovative
means of drawing high quality candidates from beyond the traditional judicial
backgrounds into the recruitment pool will be a key measure of the success of the
commissions. In particular, the decision that the Chair of the Judicial
Appointments Commission for England and Wales would be a layperson was an
important step in establishing the central role of the lay membership. The
appointment of the highly respected former First Civil Service Commissioner,
Baroness Usha Prashar, as the first Chair of the commission in 2006 is likely to
ensure that the new system will not be overly dominated by judicial and legal
interests.
The Supreme Court
Whereas the provisions for the reform of the post of Lord Chancellor and the
judicial appointments process involve an explicit redistribution of power between
the branches of government, those for establishing the new Supreme Court, in
theory, do not. The new court will exercise the same formal powers as the
Appellate Committee of the House of Lords and the devolution powers of the
Judicial Committee of the Privy Council, and the first Supreme Court judges will
be the existing Law Lords. On the face of it, therefore, the creation of the new
Supreme Court is the least radical aspect of the constitutional reforms. In practice,
however, the removal of the top court from the legislature and its reformation as
an autonomous institution is likely to have a significant and long-term effect on its
constitutional role. The current changes need to be understood in the light both of
the changing role of the UK judiciary discussed above and also the development of
a global community of increasingly powerful constitutional and Supreme Courts.
At a formal level, the most fundamental change to the powers of the top courts in
the UK in recent history was the passage of the European Communities Act. This
potentially dramatic revision of the principle of parliamentary sovereignty was
highly controversial at the time. But in practice its effect has been limited and its
occasional application by the courts has not shaken the constitutional foundations
as critics feared. For supporters of a traditional conception of parliamentary
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
67
sovereignty, the threat lies not in the growing role of the EU but closer to home
with the increasing domination of Parliament by the executive and the knock-on
effect this has had on the role of the judiciary. During the 1980s and 1990s, the
election of Governments with large majorities in the House of Commons gave rise
to claims that the only effective opposition lay in the House of Lords and the
courts. Fears that the concentration of power within the executive might threaten
basic constitutional and political norms led members of the senior judiciary to talk
of a ‘higher law’ which would require them to strike down legislation that sought
to undermine basic principles such as the rule of law. In 1994 the then Lord Chief
Justice, Lord Woolf made clear that if, for example, Parliament ‘did the unthinkable’
and removed the courts power of judicial review he would consider it necessary to:
‘mak[e] clear that ultimately there are even limits on the supremacy of Parliament
which it is the courts’ inalienable responsibility to identify and uphold.’106 However,
having dipped a toe in these dangerous waters, the senior judiciary then drew back
from the brink. Lord Steyn articulated a widely-held view in his statement that:
The relationship between the judiciary and the legislature is simple and
straightforward. Parliament asserts sovereign legislative power. The courts
acknowledge the sovereignty of Parliament. And in countless decisions the courts
have declared the unqualified supremacy of Parliament. There are no exceptions...the
judiciary unreservedly respects the will of Parliament as expressed in statutes.107
But despite such assertions, it was never likely that the genie could be put back in
the bottle and in the intervening years the underlying political conditions which
gave rise to the debate on the proper limits of judicial power have not changed.
Moreover, the passing of the Human Rights Act has significantly increased the
likelihood that courts will be called upon to consider whether an Act of Parliament
conflicts with a ‘higher constitutional law’ giving the judges the role of applying
principles of constitutionality ‘little different from those which exist in countries
where the power of the legislature is expressly limited by a constitutional
document’.108 In 2004 the question of how far courts might go when faced with such
a challenge to fundamental constitutional principles came close to being tested when
the Government proposed legislation which would have removed the courts’
jurisdiction in certain asylum and immigration appeal cases. Senior judges and
academics suggested for the first time that the courts might be entitled to ignore an
Act of Parliament if the legislation was passed.109 As Lord Woolf asked: ‘What
areas of government decision-making would be next to be removed from the
scrutiny of the courts? What is the use of courts if you cannot access them?’110 In
response to such opposition, the Bill was amended. But the underlying question of
the limits to parliamentary sovereignty was revisited in 2005 when the Appellate
Committee of the House of Lords was asked to rule on whether the Hunting Act
2004 passed under the 1949 Parliament Act was a valid statute. While the Court
upheld the legality of the Hunting Act, it concluded that there were indeed limits
to the law-making power of Parliament:
In exceptional circumstances involving an attempt to abolish judicial review or the
ordinary role of the courts, the Appellate Committee of the House of Lords or a
106 1994 F.A.Mann lecture (published in [1995] PL 57, pp 68–69).
107 Lord Steyn, Op cit p 85.
108 R v Secretary of State for the Home Department ex parte Simms [1999] WLR 328.
109 See, for example, Jeffrey Jowell, The Guardian, March 3 2004; see also Lord Steyn, The Daily Telegraph,
March 5 2004.
110 See n. 12 above.
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new Supreme Court may have to consider whether this is a constitutional
fundamental which even a sovereign Parliament acting at the behest of a compliant
House of Commons cannot abolish.111
This important judgment should be seen as the latest step in the process of
refining the notion of parliamentary sovereignty.112 What is clear is that the
relationship between the courts and Parliament is in a state of transition between
parliamentary sovereignty and constitutional supremacy.
To properly understand the nature of this evolution, it is necessary to place the
emergence of the Supreme Court and the determination of its powers in the context of
the wider trend of increasing power amongst Supreme Courts and Constitutional
Courts around the world. What we are seeing is the emergence of a global community
of senior judges.113 They are drawn from countries with different court structures and
constitutional arrangements; some have the power to strike down legislation and others
do not. But increasingly they see themselves as engaged in a global conversation about
the interpretation of basic human rights and the relationship between elected and
unelected branches of power. They read each others’ judgments and speeches; they
meet at conferences and share thoughts on their roles and functions. The UK
Supreme Court will undoubtedly be a leading and respected member of this
community of top jurists which is likely to have the effect of enhancing the new
Supreme Court Justices’ views of their role. Exactly how the new Supreme Court will
develop is still uncertain. What is clear is that the current trend around the world is for
increasing power and authority to be vested in Supreme Courts and the creation of an
autonomous Supreme Court in the UK, housed in its own building with an
independent budget and staff and a distinct identity is likely to follow that trend.
The Future
A central question which arises in assessing the implications of the Constitutional
Reform Act concerns the nature and degree of conflict between the judiciary and the
other branches of government which we can expect to see in the years ahead. The idea
of a partnership as expressed in the concordat may well provide a basis for the future
relationship, but it would be unrealistic to expect it to be a partnership without tensions.
The consequence of a more active judiciary with greater autonomy will inevitably be a
more dynamic relationship between the branches of government in which the judiciary
have a more structured and active role in defending themselves from criticism and
ensuring that the proper resources and support for the courts are in place.
The provisions of the Constitutional Reform Act have an important role to play in
establishing clearer boundaries between the branches of government and taking
the negotiations, tensions and conflicts between them from the private corridors of
power into the public arena. The governance structure of the judiciary, the role of
the Supreme Court and the judicial appointments process are areas of vital
constitutional importance which need ongoing scrutiny and debate. The effect of
the reconstruction of the judiciary as institutionally separate from but functionally
interconnected with the other branches of government will be to move the
judiciary closer to being a distinct third branch of government.
111 Lord Steyn, para 102 Jackson and Others v Her Majesty’s Attorney General, [2005] UKHL 56.
112 Lord Justice Sedley, for example, talks about the bipolar sovereignty of courts and Parliament. ‘Human
Rights: A 21st Century Agenda’ Public Law [1995] p 389
.
113 AM Slaughter A Global Community of Courts, 44 Harvard International Law Journal 191 (2003).
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
69
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 21st Century
70
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
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.”116
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
114 This document was promulgated by the Round Table Meeting of Chief Justices held at the Hague in
November 2002; it was based on the Draft Code of Judicial Conduct adopted by the Judicial Group on
Strengthening Judicial Integrity, meeting at Bangalore in 2001. The principles amplified in this document
relate to judicial independence, impartiality, integrity, propriety, equality, competence and diligence.
115 Lord Mustill, in the Fire Brigades Union case [1995] 2 AC 513, 567.
116 DPP of Jamaica v Mollison [2003] UKPC 6; [2003] 2 AC 411 at [13].
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
71
invariably 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:
117 A v Secretary of State for the Home Department (SSHD) (No 2) [2005] UKHL 71, [2006] 1 All ER 575.
118 R v SSHD, ex p Pierson [1998] AC 539.
119 R v Lord Chancellor, ex p Witham [1998] QB 575.
120 R v SSHD, ex p Simms [2002] 2 AC 115, 131.
121 Nolan LJ, in M v Home Office [1992] QB 270, 314, adopting a formulation of the relationship between
courts and the executive that had been presented in argument by Stephen Sedley QC.
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
“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-by-
case 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 made clear … that there were
considered to be certain judicial no-go areas, including matters of
national security and foreign relations. Indeed, that judicial self-
restraint 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.
122 “The Case for a Supreme Court” (2002) 118 Law Quarterly Review 382, 385.
123 A v SSHD [2004] UKHL 56, [2005] 2 AC 68.
124 For the full text of this evidence, see HC 1554-I (2005–06).
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
73
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 re-
assigned, 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.
125 A fuller account is in the Fourth Report of the Select Committee on the Constitution, HL Paper 83 (2005–
06).
126 CRA 2005, ss 19, 20 and Schedule 7.
127 CRA 2005, s 4
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
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
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
75
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 128 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 See Lord Justice Thomas, “The Judges’ Council” [2005] Public Law 608.
129 Evening Standard, 3 July 2006.
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
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 for
the 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 prejudice
judicial independence.
19.
In particular, these considerations must restrict the ability of select
committees at Westminster to summon judges to give evidence and question them
about judicial decisions. There are of course matters on which dialogue between
judges and parliamentarians could be useful.130 When the chief justice of any part
of 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.131 (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 side-
effects.
130 Cf Professor Vernon Bogdanor, “Parliament and the Judiciary: the Problem of Accountability”
(Sunningdale Accountability Lecture, given on 9 February 2006).
131 Cf Home Office, Rebalancing the Criminal Justice System, July 2006.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
77
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
132 Rebalancing the Criminal Justice System, July 2006; and Fair, effective, transparent and trusted—Rebuilding
Confidence in our immigration system, July 2006.
133 Joint Committee on Human Rights, 32nd Report, 2005–06 (HL Paper 278, HC 1716): The Human Rights
Act: the DCA and Home Office Reviews.
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RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
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
134 See A W Bradley, “The Sovereignty of Parliament – Form or Substance?” in Jowell and Oliver (ed), The
Changing Constitution (5th edn, 2004), chap 2.
135 Rights Brought Home: the Human Rights Bill, Cm 3782(1997), para 2.14.
136 See note 11 above.
137 See Ghaidan v Godin-Mendoza [2004] UKHL 30, [2004] 2 AC 557.
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
79
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 re-
considering 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
138 See e g D Nicol, “Law and Politics after the Human Rights Act” [2006] Public Law 722.
139 A v SSHD (note 11 above), para [29].
140 Ibid [40]
80
RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT
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.143
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
141 Ibid [42]
142 Ibid.
143 These points are taken from the Executive Summary of the Review. See note 21 above.
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