Committee on the Constitution Relations between the executive, the judiciary and Parliament Report with Evidence Part 15

Case name and description Comments Content of the declaration Date The section declared incompatible was no longer in force at t Section 262 of the Income and Corporation Taxes Act 1988 was incompati 18 Jun 2003 ation of Wilkinson) v Inland R (on the applicnt udgmehe jhe date of tcle 14 when read ble with Arti
having already been repealed by the Finance Act 1999 sections34(1)with Article 1 of Protocol 1 in that it
discriminated against widowers in the provision of Widows Bereavement Allowance.Revenue Commissioners (Court of Appeal, upholding Moses J)[2003] EWCA Civ 814 , 139, Schedule 20.  House
equent by subsed unaffectn wasaratio (The decl UKHL 30 on 5 May 2005) of Lords ruling [2005] after 6 Apr 2000) (In force in relation to deaths occurring on or payment of Widows Bereavement The case concerned the prs.  t not widowews buAllowance to widoThe provisions were repealedby the Prevention of T 1998 (Designated ts Act RighThe Human16 Dec2004  Home ate for theers v Secretary of StA and othe rrorism 2001 was quashed derogation) Order nt Department which put in place a Act 2005,e meansattionp or as not a prot wause ibec new regime of control orders.(In force 11 Mar 2005)t uld no sought and cog the aimevin of achi(House of Lords) [2004] UKHL 56ticle 15. thin Arl witherefore falible Section 23 of the Anti-terrorism, Crime And Security Act 2001 was incompat led international The case concerned the detention under the Anti-terrorism,Crime and Security Act 2001 of foreign nationals who had been
 certified by twith Articles 5 and 14 as it was disproportionate and pers suspect State ary of he Secreta
mitted the d who could not be deported without breaching  terrorists, andetention of suspected international
terrorists  accordanrial int charge or thouained wi They were detcle 3 Artis in a way that discriminated on the  immigration status.ground of nationality or with a derogation from Article 5(1) provided by the Human
Rights Act 1998 (Designated Derogation) Order 2001. how to DCLG are consideringSection 185(4) of the Housing Act 1996was incompatible wi14 Oct 2005 ation of Sylviane Pierrette R (on the applic

remedy the incompatibility. th Article 14 to the es a dependent child t it requirextent thawho is subject to immigration control to be disregarded when determining whether a British citizen has prio Morris) v Westminster City Council & First Secretary of State (Court of Appeal, upholding Keith J) [2005] EW CA Civ 1184 rity on.  need for accommodation plication for local authority The case concerned an apen) 

accommodation by a single mother (a British citizen whose child was subject to immigration control. 

Case name and description Comments Content of the declaration Date how to DCLG are considering the Housing Act 1996  Section 185(4) of 28 Mar 2006 tate R (Gabaj) v First Secretary of Sremedy the incompatibility. opean 14 Euricleible with artompatis inc the tstoghn Rima Huononntinve
Co(Administrative Court)(unred)porteextent that it requires a pregnant memberof the hen, if itizsh cehold of a Britious both are habitually resident in the UnitedKingdom above, except that it was The case was a logical extension of the declarationgranted in the case of Morrisdisregarded when o be trather than the claimant’s the claimant’s pregnant wife, ish citizen e Brit thing whetherdeterminchild, who was a person from abroad. ion or or accommodaty need fhas a prioritember regnant mless, when the pis home abroad  person froms aehold iousof the hance.  assistousing for hligiblewho is ine The Home Office did not appeal the j the Asylum and 19(3) ofSection10April2006  ation of Baiai and others) v R (on the applicudgment of Silber J ) s, etc of Claimant (TreatmentionImmigraton Article 14 and areconsidering how to remedy theincompatibility with Article 14.(A Home Office appe”) is incompatible Act 2004 (“the 2004 ActSecretary of State for the Home Departmentand another 14 of the European with Articles 12 and dmin)HC 823 (A(Silber J) [2006] EW that the  Rights in on HumanConventional to the n is unjustifiably to visiof this proeffect ot in place to deal The case concerned the procedures, puCourt of Appeal on the Article12 findings was unsuc nationality  the grounds ofdiscriminate oncessful: t n is novisiothis proand religion and that to go through before they with sham marriages, which persons subject toimmigration control are required CA Civ 478. They [2007] EWionlarate. An equivalent decproportionat can marry in the UK.are considering whether to seek permission to appeal to the House of Lords on that issue.) d 8 ans 7 on atiulegto Rrelation
was made inigration (Procedure for of the Immich on s 2005 (whgulati) ReMarriageome Office Immigration Guidance wasalso held to be unlimposed a fee for applications).(Hawful on the grounds it was incompatible with Articles 12 and 14 ECHR. This did not involve s4 HRA.)Case name and description
Comments Content of the declaration Date The judgment is subject to appeal by tSection 82(4)(b) of the Care Standards Act 2000 w16 Nov2006 ation of (1) June Wright (2) R (on the applicpart ment of he Deas incompatible with Articles ummun (3) Mary Quinn (4) Barbara Khemraj JHealth. 6 and 8. ecretary of State for Health (2 Gambier) v (1) Sn & Skillsr EducatioSecretary of State foAdmin) HC 2886 ((Stanley Burnton J)[2006] EWThis case concerned the Care Standards Act 2000 Part VII procedures in relation to provisional listing of care workers as unsuitable to work with vulnerable adults. The provisions had already been r2) of the Sections 46(1) and 50(aced by d repealed an Criminal Justice Act 1991 were in compati13 Dec2006 nt; Secretary of State for the Home R (Clift) v Secretary of State for the Home Departme the Criminal Justice Act 2003save thacle 14 taken ble with Artint v Hindawi and Another Department to t they continueon the grounds th Article 5together wiapply on a transitional basis to hoffenheim discriminated on grounds of that t fore 4 mitted becomes co national origin. April 2005. (House of Lords)
[2006] UKHL 54 This was a conjoined appeal in which the appellants were all former or serving prisoner The Home Office is considering how to remedy the incompatibility in relation to offens. The issue on appeal was o which each of the whether the early release provisions, appellants was subject, were discriminatory. ling within that ces fall transitional category.  ruled that it was part The Court of the Section 3(1) of the Representation or the on fsi of Sesourtof the Ce with People Act 1983 was incompati the on 4 ofsof secti purpose he Article 3 of the First Protocol to t Smith v Scott (Registration Appeal Court, Scotland)[2007] CSIH9  therefore ,and Human Rights Act hat it sounds tnon the gr Conventioion a declaratomakehad power ted on convictimposed a blanket banibility under that of incompat prisoners voting in Parliamentary elections. Representation of the People This case concerned the incapacity of convicted prisoners to vote under section 3 of the section. The Government is Act 1983.  

HOUSE OF LORDS Select Committee on the Constitution Relations between the executive, the judiciary and Parliament Report with Evidence Part 14

 UNDER SECTION 4 OF THE HUMAN RIGHTS ACT 1998
COMPATIBILITY MADE
X
 6: DECLARATIONS OF IN
APPENDI

Act 1998 in e of which have been made under section 4 of the Human Rights
s of incompatibility we are awar
Part 1: These are the declaratione the
eal—se
been overturned on appeal (although some remain subject to appnd which have not
,
 a gislation in primary leisionsrovrespect of pow
.  the table bel out in Part 2 of al are set at ibility which have been overturned on appeions of incomp). Declarat“comments” column Comments Content of the declaration Date Case name and description
The legislation was amended by the Mental Health Act 1983 (Remedial) Order 2001(SI 2001 N
Sections 72 and 73 of the Mental Health Act 1983 w Mar 2001

28 alth  ation of H) v Mental HeR (on the applicere incompatible with Article ibunal
 for the North and East
Review Tr 4) in as much as they did not  5(1) and 5(o.3712) (In force 26 Nov 2001)
 discharge a patient where it require a Mental Health Review Tribunal to suffering could not
 be shown that he was s London Region & The Secretary of State for Health (Court of Appeal)
[2001] EWCA Civ 415 anted  that warrfrom a mental disorder detention. er dmitted und
The case concerned a man who was aught section 3 of the Mental Health Act 1983 and so
discharge from hospital.Section 62 was repealed in NI by the Sexual OffencSection 62 of the Offences Against thePerson Act 1861 (attempted buggery),which co 15 Jan2002
McR’s Application for Judicial Review es Act ons 139, 140, 2003, sectirn d to apply in Northe
ntinue ph 4 and Schedule 6 paragraIreland, was incompatible with Article 8 to the extended with the
(Kerr J)[2003] NI 1 The case concerned a man who was cha Schedule 7.(In force 1 May 2004)
sensual terfered with co at it int th duals. e en indivi ha viour betw sexual be an. He argued that the existence of attempted buggery of wom the offence of attempted buggery was in breach of Article 8.
The legislation was amended by the Maintained in Part II  coy scheme The penalty onality, and Asylum Act 1999 of the Immigration 22 Feb 2002 um Act  Immigration and Asylcause le 6 be with  Articatible
was incomp on 125, and  2002, sectifended  the penalties of the fixed nature of International Transport Roth GmbH v Secretary of State for the Home Department (Court of Appeal, upholding Sullivan J)[2002] EW
CA Civ 158 Schedule 8.(In force 8 Dec 2002) rmined by o have a penalty dete the right tal. It also violated
dent tribun an independ an 1 as it imposeocol e 1 of ProtArticl The case involved a challenge to a penalty regime applied to carriers who unknowingly transported clandestine entrants to the UK.   the carriers.
rden on buexcessive.

Case name and description Comments Content of the declaration Date The law was repealed by the
Criminal Justice Act 2003,sections 303(b)(I), 332 and Schedule 3es) Act e (SentencSection 29 of the Crim
25 Nov 2002 retary R (on the application of Anderson) v Secight e with the rbl 1997 was incompati
7, Pt 8. under Article 6 to have a sentence imposed by nd pendent a an indeTransitional and new
sentencing provisions were contained i period impartial tribunal in that the Secretaryof State decided on the minimumof State for the Home Department(House of Lords)[2002] UKHL 46The case involved a challenge to the Secretary of Statefor the Homn Chapter 7 and which must be served by a mandatory life sentence prisoner before he was considered for release on licence.o set the minimum e Department’s power t
 that 1 and 22 of Schedule 2 Act.(Date power repealed 18Dec 2003) period that must be served by a mandatory life sentence prisoner. The law was amended by the Criminal Justice Act 2003 section 295.
(In force 20 Jan 2004)  Section 74 of the Mental Health Act1983 was i19 Dec 2002 ary of State for the Home R v Secretn compatible with Article 5(4) nt, ex parte D Department that the continued to the exte
f discretionary life prisoners detention oHC 2805 (Stanley Burnton J)[2002] EWheir nal part of the pe
rved t who had secise of a pended on the exersentence dery power by the executive discretion The case involved a challenge to the Secretary of State for the Home Department’s discretion to allow a ess to  to grant accovernment branch of g a court. discretionary life prisoner to obtain access to a court to
challenge their continued detention. The law was amended by theHuman Fertilisation and
Embryology (DeceasedFathers) ASection 28(6)(b) of the Human Fertilisation and Embryology Act 1990
was incompatible wi28 Feb2003 th Article 8, and/or Blood and Tarbuck v Secretary of State for
Health(Sullivan J)ct 2003. cle 8, Article 14 taken together with Arti(In force 1 Dec 2003) d not allow a
nt that it dito the exteules preventing a deceased Unreported The case concerned the r ther’s name to be given on deceased faate of his child. th certific the bir father’s name from being entered on the birth certificate of his child.
Case name and description Comments Content of the declaration Date l 2002) (11 Ju v UK In Goodwin
Section 11(c) Matrimonial Causes Act 1973 was incompati 10 Apr2003 Bellinger v Bellinger d the
 identifiethe ECtHR e with Articles 8 blabsence of any system for legalrecognition of gender change
as a breach of Articles 8 and 12. This wand 12 in so far as it makes no provision for the recognition of gender sexual appealed (House of Lords)[2003] UKHL 21 A post-operative male to female trans
reassignment. as remedied by the he was not validly married to her cision that sagainst a dect 2004.
Gender Recognition A fact that at law she was a man. husband, by virtue of the (In force 4 April 2005)
e These provisions will b apter 3 replaced by Part 1, Ch Sections 26 and 29 of the Mental Health
Act 1983 were incompatible with Article 16 Apr2003 (clauses 24–27) of the Mental Health Bill currently before Parliament.8, in that the claimant had no choiceover the appointment or legal means of challengi
R (on the application of M) v Secretary of State for Health(Maurice Kay J)[2003] EWHC 1094  The Bill was r  the appointment of hengintroduced in the House ofLords on 16 November 2006.It completed its Lords stageson 6 March 2007 and will nowpass to the House ofCommons. tive. nearest rela
 detention under The case concerned a patient who lived in hostelaccommodation but remained liable to
the Mental Health Act 1983. Section 26 of the Act designated her adoptive father as her “nearest relative”
even though he had abused her as a child. The law had already been amended at the da Sections 36 and 37 of the Social Security Contributions and Be 18 Jun 2003 ation of Hooper and others) v R (on the applic
te of the nefit Act s d Pension Secretary of State for Work anre nt by the Welfa judgmen n breach of Article 14 i1992 were iReform and Pensions Act1999, secticle 8 and Article 1 n with Articombinatio(Court of Appeal, upholding Moses J)[2003] EWCA Civ 875 on 54(1) wers. of Protocol 1 in that benefits were
provided to widows but not wido House equent by subsed unaffectn wasaratio (The decl (In force 9 Apr 2001) UKHL 29 on 5 May 2005) of Lords ruling [2005] The case concerned Widowed Mothers Allowance which was payable to women only and not to men. Case name and description
Comments Content of the declaration Date The section declared incompatible was no longer in
force at t Section 262 of the Income and Corporation Taxes Act 1988 was incompati 18 Jun 2003
ation of Wilkinson) v Inland R (on the applicnt udgmehe jhe date of tcle 14 when read ble with Arti
having already been repealed by the Finance Act 1999 sections 34(1) with Article 1 of Protocol 1 in that it
discriminated against widowers in the provision of Widows Bereavement Allowance.Revenue Commissioners(Court of Appeal, upholding Moses J)[2003] EWCA Civ 814 , 139, Schedule 20.  Ho
use equent by subsed unaffected wasaratio (The decl UKHL 30 on 5 May 2005) of Lords ruling [2005]
after 6 Apr 2000) (In force in relation to deaths occurring  on or a yment of Widows Bereavement
The case concerned the prs.  t not widowews buAllowance to widoThe provisions were repealed by the Prevention of T 1998 (Designated ts Act RighThe Human16 Dec2004  Home ate for the ers v Secretary of St A and other rorism 2001 was quashed derogation) Order nt Departme which put in place a Act 2005,
e meansattionporas not a prot wause ibecnew regime of control orders.(In force 11 Mar 2005)t uld no
 sought and cog the aimevin of achi (House of Lords) [2004] UKHL 56 ticle 15. thin Arl
 we therefore fallible Section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatl ed in
ternationaThe case concerned the detention under the Anti-terrorism,Crime and Security Act 2001 of foreign nationals who had been certified by t with Articles 5 and 14 as it wasdisproportionate and pers suspect Stat
eary of the Secretamitted the d who could not be deported without breaching terrorists, andetention of suspected internationalterroristce  accordanrial int charge or thouained wit They were detcle 3 Art is in a way that discriminated on the  immigration status.ground of nationality orwith a derogation from Article 5(1) provided by the Human Rights Act 1998 (Designated Derogation) Order 2001. how to DCLG are considering Section 185(4) of the Housing Act 1996was incompatible wi14 Oct2005 ation of Sylviane Pierrette R (on the applicremedy the incompatibility. th Article 14 to the es a dependent child t it requirextent tha who is subject to immigration control to be disregarded when determining whether a British citizen has prioMorris) v Westminster City Council & FirstSecretary of State(Court of Appeal, upholding Keith J)
[2005] EWCA Civ 1184 rity on.  need for accommodation plication for local authority The case concerned an apen) accommodation by a single mother (a British citizwhose child was subject to immigration control. 

HOUSE OF LORDS Select Committee on the Constitution Relations between the executive, the judiciary and Parliament Report with Evidence Part 13

morality’.
182
 On this view an individual will have a right to the legal answer which
is forthcoming from the application of the above test.
Dworkin accepts the formal idea of the rule of law set out above, labelling this the
‘rule book’ conception. This requires that the government should never exercise
power against individuals except in accordance with rules which have been set out
in advance and made available to all.
183
 Such values feature in any serious theory of
justice.
184
 However as Dworkin notes, this says little if anything about the content
of the laws which exist within a legal system. Those who restrict the rule of law in
this manner care about the content of the law, but regard this as a matter of
substantive justice, which is ‘an independent ideal, in no sense part of the ideal of
the rule of law’.
185

Dworkin argues that we should however also recognise a rights-based conception
of the rule of law. On this view citizens have moral rights and duties with respect
to one another, and political rights against the state. These moral and political
rights should be recognised in positive law, so that they can be enforced by citizens
through the courts. The rule of law on this conception is the ideal of rule by an
accurate public conception of individual rights. In the words of Dworkin, this view
of the rule of law ‘does not distinguish, as the rule book conception does, between
the rule of law and substantive justice; on the contrary it requires, as part of the
ideal of law, that the rules in the book capture and enforce moral rights’.
 It does
not mean that this conception of the rule of law is consistent with only one theory
of justice or freedom. There is no such argument. It does mean that it is not
independent of the particular theory of justice, or vision of freedom, which
constitutes its content at any point in time.
Similar themes have been advanced by Sir John Laws, writing extra-judicially. In
an important series of articles he articulated the role of the courts in the protection
of fundamental rights.
187 The detailed nature of the argument is not of immediate
concern to us here. Suffice it to say for the present that Sir John Laws presented an
essentially rights-based conception of law and the role of the judge in cases
involving fundamental rights. He posited a higher order law which was binding on
the elected Parliament, with the courts as the guardian of both fundamental
individual rights, and what may be termed structural constitutional rights.
 The thesis is premised on a particular conception of liberalism and individual
autonomy, with a divide drawn between positive and negative rights. The rule of
law is held to encompass an attachment to freedom, certainty and fairness. The
first of these elements is the substantive component of the rule of law, while the
second and the third bring in the more traditional attributes of the formal rule of
law.
189 The important recent lecture by Lord Bingham on the rule of law is also relevant
in this regard, more especially because it was given against the background of the
Constitutional Reform Act 2005.
190
 Lord Bingham articulates eight principles that
comprise the rule of law. Certain of these principles address the more formal
dimensions of the rule of law. These include the idea that the law must be
accessible, and so far as possible, intelligible, clear and predictable; that questions
of legal right and liability should ordinarily be resolved by application of the law
and not the exercise of discretion; and that means should be provided for resolving
without prohibitive cost or inordinate delay bona fide civil disputes which the
parties themselves are unable to resolve.
It is however clear that Lord Bingham considers the rule of law as extending
beyond these basic precepts. He regards it as including the central idea that the
laws of the land should apply equally to all, save to the extent that objective
differences justify differentiation, and that it demands that the law must afford
adequate protection for fundamental rights. Lord Bingham expressly confronts the
objection advanced by Raz to the inclusion of fundamental rights within the rubric
of the rule of law, but disagrees with him in the following terms.
191

A state which savagely repressed or persecuted sections of its people could not in
my view be regarded as observing the rule of law, even if the transport of the
persecuted minority to the concentration camp or the compulsory exposure of the
female children on the mountainside were the subject of detailed laws duly enacted
and scrupulously observed. So to hold would, I think, be to strip the existing
constitutional principle affirmed by section 1 of the 2005 Act of much of its virtue
and infringe the fundamental compact which … underpins the rule of law.
It is equally clear that Lord Bingham views the principles of judicial review as
having their foundation in the rule of law. Thus he states that ‘ministers and public
officers at all levels must exercise the powers conferred on them reasonably, in
good faith, for the purpose for which the powers were conferred and without
exceeding the limits of such powers’,
192  and ‘adjudicative procedures provided by the state should be fair’.
193 Jowell has also articulated a view of the rule of law, which has both a formal and a
substantive dimension.
194 He accepts that one must be careful about equating the
rule of law with the substance of particular rules. He accepts also that a significant
part of the rule of law is concerned with procedure or form as opposed to
substance. Jowell does however believe that the rule of law has a substantive
dimension. He perceives the rule of law as a principle of institutional morality and
as a constraint on the uninhibited exercise of government power. The practical
implementation of the rule of law takes place primarily through judicial review. Its
substantive dimension is manifest in the judiciary’s willingness to strike down
administrative or executive action if it is unreasonable, arbitrary or capricious.
Allan’s interpretation of the rule of law also contains an admixture of formal and
substantive elements.
195  He argues that we should go beyond the formal conception of the rule of law,
 but that we should stop short of regarding the rule of law as the expression of any particular theory of substantive justice. The rule of law on this view does not entail commitment to any particular vision of the public
good or any specific conception of social justice, but does require that all legal
obligations be justified by appeal to some such vision. The rule of law should
embrace, in addition to its formal attributes, ideals of equality and rationality,
proportionality and fairness, and certain substantive rights. These are said to
constitute central components of any recognisably liberal theory of justice, while
leaving the scope and content of the rights and duties which citizens should
possess largely as a matter for independent debate and analysis. Formal equality is
to be supplemented by a more substantive equality, which requires that relevant
distinctions must be capable of reasoned justification in terms of some conception
of the common good. Allan’s theory also embraces certain substantive rights,
namely freedoms of speech, conscience, association, and access to information. It
is recognised that there will be other rights within a liberal polity, which should be
faithfully applied, but these are not regarded as a constituent part of the rule of
law.
It should be recognised that any approach of the kind under examination will
require some choice as to what are to count as fundamental rights, and the more
particular meaning ascribed to such rights. This choice will reflect assumptions as
to the importance of differing interests in society. This is unavoidable. It is of
course true that any democracy to be worthy of the name will have some
attachment to particular liberty and equality interests. If, however, we delve
beneath the surface of phrases such as liberty and equality then significant
differences of view become apparent even amongst those who subscribe to one
version or another of liberal belief. This leaves entirely out of account the issue as
to how far social and economic interests ought to be protected. It also fails to take
account of other visions of democracy, of a communitarian rather than liberal
nature, which might well interpret the civil/political rights and the social/economic
rights differently. It is therefore neither fortuitous, nor surprising, that in other
common law systems which possess constitutionally enshrined rights, such as the
United States and Canada, there is considerable diversity of opinion even amongst
those who support a rights-based approach, as to whether this should be taken to
mean some version of liberalism, a pluralist model, or a modified notion of
republicanism.
This point is equally true of ideas such as legality, rationality, participation,
openness, proportionality, procedural fairness and the like, which can be given
interpreted differently depending upon the more general scheme into which they
are to fit.
The consequences of breach of the rule of law in the sense considered within this
section should also be addressed. It is important, as when discussing other versions
of the concept, to distinguish between the consequences of breach of the rule of
law in relation to primary statute and in relation to other measures.
The short answer in relation to a primary statute that violates the rule of law is as
follows. The fact that a statute does not conform to this conception of the rule of
law does not in itself lead to its invalidation. The UK courts have not traditionally
exercised the power of constitutional review to annul primary statutes for failure to
conform to fundamental rights, or other precepts of the rule of law that constitute
the principles of judicial review. This proposition must nonetheless be qualified in
three ways.
First, there are statements by judges countenancing the possibility that the courts
might refuse to apply an Act of Parliament in certain extreme circumstances. The
examples tend to be of (hypothetical) legislation that is morally repugnant, or of
legislation through which Parliament seeks to re-order the constitutional structure
by abolishing judicial review, by making illegitimate use of the Parliament Acts or
by extending very considerably the life of a current Parliament. It should moreover
be recognised that the case law authority for the traditional proposition that courts
will not invalidate or refuse to apply statute is actually rather thin. There are to be
sure many judicial statements extolling the sovereignty of Parliament, but they are
principally just that, judicial statements rather than formal decisions. Insofar as
there are formal decisions that could be said to be based on the traditional
proposition, the facts of such cases were generally relatively innocuous. They were
a very long way from the types of case where courts might consider it to be
justified to refuse to apply a statute, which also means that such cases could be
readily distinguished should a court feel minded to do so.
Secondly, one who subscribes to the version of the rule of law discussed in this
section might well argue that courts should generally exercise the ultimate power
to invalidate statute for failure to comply with constitutionally enshrined rights, or
with rights that are regarded as fundamental or foundational even where they are
not formally enshrined in a written constitution. Dworkin is a prominent exponent
of this view. The literature on this topic is vast, with the debate for and against
such judicial power being replayed in successive academic generations.
Thirdly, courts or judges who subscribe to the conception of the rule of law
discussed in this section have in any event powerful interpretive tools at their
disposal through which to read legislation so that it does not violate fundamental
rights or other facets of the rule of law. Thus even prior to the Human Rights Act
1998, the courts made it clear through the principle of legality that statutes would
be read so as to conform to such rights. If Parliament intended to infringe or limit
fundamental rights then this would have to be stated expressly in the legislation, or
be the only plausible reading of the statutory language. Legislation was therefore
read subject to a principle of legality, which meant that fundamental rights could
not be overridden by general or ambiguous words. This was, said Lord Hoffmann,
because there was too great a risk that the full implications of their unqualified
meaning might have passed unnoticed in the democratic process. In the absence of
express language or necessary implication to the contrary, the courts would
therefore presume that even the most general words were intended to be subject to
the basic rights of the individual. Parliament had, therefore, to squarely confront
what it was doing and accept the political cost. An interpretive approach is clearly
evident once again in the Human Rights Act 1998, section 3, which provides that
‘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’. Section 3 does not, however, affect the validity, continuing operation or
enforcement of any incompatible primary legislation. Where a court is satisfied
that primary legislation is incompatible with a Convention right then it can,
pursuant to section 4 of the HRA, make a declaration of that incompatibility.
The consequence of breach of the rule of law in relation to measures other than
primary statute is more straightforward. Insofar as the rule of law is regarded as
the foundation of the principles of judicial review then it follows that breach of the
rule of law, manifested through breach of one of the more particular principles of
judicial review, can lead to annulment of the measure. This says nothing about
whether the judicial decision will be controversial or not. The great many judicial
review decisions generate no political controversy, but there will inevitably be
instances where Parliament, or more usually the relevant minister, feels that the
court’s judgment was ‘wrong’ in some way. There will more generally be wide-ranging academic debate about the principles of judicial review and the way in
which they are applied in particular cases.
It is fitting to conclude this paper by reverting to Lord Bingham’s lecture, the
catalyst for which was the statutory mention of the rule of law in the
Constitutional Reform Act 2005, section 1. The importance of the interpretive
tools used by courts is apparent once again in the following extract.

[T]he statutory affirmation of the rule of law as an existing constitutional principle
196
and of the Lord Chancellor’s existing role in relation to it does have an important
consequence: that the judges, in their role as journeymen and judgment-makers,
are not free to dismiss the rule of law as meaningless verbiage, the jurisprudential
equivalent of motherhood and apple pie, even if they were inclined to do so. They
would be bound to construe a statute so that it did not infringe an existing
constitutional principle, if it were reasonably possible to do so. And the Lord
Chancellor’s conduct in relation to that principle would no doubt be susceptible,
in principle, to judicial review.

HOUSE OF LORDS Select Committee on the Constitution Relations between the executive, the judiciary and Parliament Report with Evidence Part 12

APPENDIX 5: PAPER BY PROFESSOR PAUL CRAIG: THE RULE OF LAW.
 1. Introduction
This paper seeks to provide guidance concerning the meaning of the ‘rule of law’,
in the light of section 1 of the Constitutional Reform Act 2005, which makes
explicit reference to that concept.
A ‘health warning’ is in order for anyone venturing into this area: a cursory glance
at the index of legal periodicals revealed 16,810 citations to books and articles
concerned with the rule of law, and that is certainly an underestimation, since
many articles discuss the concept in ways that might not necessarily be picked up
by the search engine and the number only covers legal material.
There is considerable diversity of opinion as to the meaning of the rule of law and
the consequences that do and should follow from breach of the concept. I will
nonetheless attempt to identify as objectively as possible different senses of the rule
of law.
2. Dicey’s Conception of the Rule Law
Modern conceptions of the rule of law will be considered below. It would however
be odd not to advert to Dicey’s conception,
174
 given the prominence that it has had
in the UK. It should nonetheless be realised that his conception of the rule of law
was ambiguous in certain respects.
Dicey’s first principle of the rule of law was that ‘no man is punishable or can be
lawfully made to suffer in body or goods except for a distinct breach of law
established in the ordinary legal manner before the ordinary courts of the land. In
this sense the rule of law is contrasted with every system of government based on
the exercise by persons in authority of wide, arbitrary, or discretionary powers of
constraint’.
The first sentence requires that laws under which people are condemned should be
passed in the correct legal manner and that guilt should only be established
through the ordinary trial process. This is an important principle, although it
should be noted that nothing here speaks to the content of the laws which an
individual will have to face when taken before the courts. The meaning of the
second sentence is more problematic. The word ‘arbitrary’ could connote a clear
law, which was properly enacted by Parliament, but which might nonetheless be
regarded as arbitrary if it was thought to infringe certain fundamental rights, or if it
entailed excessive punishment. The word ‘arbitrary’ could alternatively be used to
describe a law passed in the correct legal manner, but where it was very vague or
unclear, with the result that individuals had no real idea how to plan their lives in
the light of the relevant legal rule. This sense of arbitrariness is independent of
whether the content of the legislation was just or unjust.
Dicey’s second principle of the rule of law concerns equality: ‘every man, whatever
be his rank or condition, is subject to the ordinary law of the realm and amenable
to the jurisdiction of the ordinary tribunals’.
174 The Law of the Constitution (10th ed, 1959). This formulation is concerned primarily with equal access to the courts, not with
the nature of the rules which individuals find when they get there.
175
 It is true that
Dicey was explicitly against officials being accorded any special privileges, but
beyond this Dicey’s second principle does not take one very far. He showed little
concern with the role of law in deciding whether different rules applicable to
different groups were defensible on the ground that that there was some rational
justification for the difference in treatment.
Dicey’s third principle was that the unwritten constitution in the UK could be said
to be pervaded by the rule of law because rights to personal liberty, or public
meeting resulted from judicial decisions, whereas under many foreign constitutions
such rights flowed from a written constitution.
This third limb of the rule of law is ambiguous. It might be read to mean that a
society must possess certain individual rights if it is to conform to the rule of law.
The alternative reading was that if you wished to protect such rights then the
common law technique was better than that employed on the continent. Dicey
dealt in detail with the precarious protection of rights on the continent, where
constitutions enshrining rights would often be abrogated at the stroke of the pen or
the point of a sword. He felt that in the UK, where individual rights were the result
of numerous judicial decisions indicating when the individual was at liberty to
speak freely etc, it would be considerably more difficult for an authoritarian regime
to sweep these rights aside.
3. Modern Conceptions of the Rule of Law
The Diceyan view of the rule of law was therefore ambiguous in certain respects,
and similar uncertainties surround the historical meaning of the phrase
‘government of laws, not of men’.
The modern literature on the rule of law is, as noted above, extensive and diverse.
A number of different meanings of the rule of law can nonetheless be identified.
(a) The Rule of Law and Lawful Authority
A core idea of the rule of law to which all would subscribe is that the government
must be able to point to some basis for its action that is regarded as valid by the
relevant legal system. Thus in the UK such action would commonly have its
foundation in statute, the prerogative or in common law power. The relevant
measure would then have to be made by the properly authorised person or
institution, in the properly authorised manner
If the government cannot provide a legal foundation for its action then the UK
courts would regard the action as unlawful, since there would be no lawful
authority for it.
This core meaning of the rule of law tells one nothing as to the nature of the
challenged governmental action. The government might be seeking to achieve
some benign objective, or it might be attempting to do something that most would
regard as undesirable. This is irrelevant for the purposes of the present inquiry.
The measure would be equally contrary to the rule of law if the government could
not point to some basis for its action that would be regarded as valid by that legal
system. (b) The Rule of Law and Guiding Conduct
The meaning of the rule of law considered in the preceding section is important,
but limited. Any law properly passed by Parliament would meet the rule of law
defined in this manner. Thus the fact that laws should be passed in the correct
legal manner is a necessary facet of the rule of law, but it is not sufficient.
It is for this reason that most would agree that the rule of law demands more than
this. A further important aspect of the rule of law is that the laws thus promulgated
should be capable of guiding ones conduct in order that one can plan ones life.
It is from this general precept that Raz deduced a number of more specific
attributes that laws should have in order that they could be said to comply with the
rule of law.
176
 All are related to the idea of enabling individuals to be able to plan
their lives. The ‘list’ includes the following: that laws should be prospective, not
retrospective; that they should be relatively stable; that particular laws should be
guided by open, general and clear rules; that there should be an independent
judiciary; that there should be access to the courts; and that the discretion which
law enforcement agencies possess should not be allowed to undermine the
purposes of the relevant legal rules.
The rule of law in the sense articulated here could be met by regimes whose laws
were morally objectionable, provided that they complied with the formal precepts
of the rule of law. It is equally the case that not all laws passed by a democratic
regime will necessarily comply with the rule of law.
The rule of law on this view is essentially a negative value, as Raz himself admits.
Given that the law can empower the state to do all manner of things the rule of law
minimises the danger created by the law itself. It does so by ensuring that whatever
the content of the law, at least it should be open, clear, stable, general and applied
by an impartial judiciary.
It would however be mistaken not to recognise the more positive side of the rule of
law when viewed in this manner. Even if the actual content of the law is morally
reprehensible, conformity to the rule of law will often be necessary to ensure that
individuals actually comply with the demands which the law imposes.
It is also important to recognise, as Raz emphasises, that the rule of law in the
above sense is only one virtue of a legal system, and may have to be sacrificed to
attain other desired ends. We may feel that the rule of law virtues of having clear,
general laws should be sacrificed if the best or only way to achieve a desired goal is
to have more discretionary, open-textured legal provisions. This may be so where
it is not possible to lay down in advance in the enabling legislation clear rules in
sufficient detail to cover all eventualities. Modifications to the rule of law in this
manner are not somehow forbidden or proscribed. Given that it is only one virtue
of a legal system it should not prevent the attainment of other virtues valued by
that system.
It is moreover important to be clear as to the consequences of breach of the rule of
law in the sense considered in this section. The fact that a law is vague or unclear,
and that it therefore provides little by way of real guidance for those affected by it,
will not lead to a statute being invalidated in the UK. The courts may well
interpret such a statute narrowly, in favour of the individual in such circumstances.
They might also read it down pursuant to the Human Rights Act 1998, if the
particular statute would otherwise infringe rights derived from the European Convention on Human Rights. If the courts felt unable to read it down, they could
issue a declaration of incompatibility under the HRA, and the matter would be
sent back to Parliament for reconsideration. The courts therefore have
considerable interpretive techniques at their disposal to ensure that legislation that
fails to meet the requirements of the rule of law set out above is construed
narrowly in favour of the individual. This does not alter the fact that UK courts
have not traditionally exerted power to invalidate an Act of Parliament on such
grounds.
The matter is different if the provision that fails to comply with the rule of law is
something other than a statute. There is nothing to prevent the courts from
invalidating other measures, whether they take the form of delegated legislation,
individual ministerial decisions, acts of local authorities or decisions of agencies. If
such a measure fails to comply with the requirements of the rule of law it is always
possible for the courts to use one of the principles of judicial review to annul the
measure. Thus if a minister purports to make a measure retrospective the courts
will require express authorisation from the enabling statute, or something closely
akin thereto, before they would be willing to accept that the minister’s powers
extended this far.
177
 Similarly, if the contested ministerial measure was very vague
or unclear the courts would have a number of options at their disposal. They
might decide that this was not consistent with the primary legislation; that it
should be annulled under section 6 of the HRA; that the vagueness of the measure
was indicative that the minister was acting for improper purposes; or that the
challenged measure was an unreasonable exercise of the discretionary power
vested in the minister.
Many would subscribe to the analysis presented above, although they might well
disagree either as to its application in any particular instance, or as to whether the
rule of law values should be ‘sacrificed’ to attain some other desirable goal.
There have however been more radical challenges by those who argue that the
formal conception of the rule of law was always a mask for substantive inequalities
in power, and that in the modern day this formal conception is in any event
increasingly unattainable.
178 A key issue is whether the rule of law should encompass more than the formal
conception presented in this section. The contending arguments are complex, but
the essence of the disagreement can be presented as follows.
The rule of law as presented thus far is not concerned with the actual content of
the law, in the sense of whether the law is just or unjust, provided that the formal
precepts of the rule of law are themselves met. To put the same point in another
way, it is necessary on this view to consider the content of the law in order to
decide whether it complies with the precepts of the rule of law concerning clarity,
generality, non-retrospectivity etc, but provided that it does so comply then that is
the end of the inquiry.
The rationale for restricting the rule of law in this manner is as follows.
 We may all agree that laws should be just, that their content should be morally sound and
that rights should be protected within society. The problem is that if the rule of
law is taken to encompass the necessity for ‘good laws’ in this sense then the
concept ceases to have an independent function. There is a wealth of literature
179devoted to the discussion of the meaning of a just society, the nature of the rights
which should subsist therein, and the appropriate boundaries of governmental
action. Political theory has tackled questions such as these from time immemorial.
To bring these issues within the rubric of the rule of law would therefore rob this
concept of an independent function. Laws would be condemned or upheld as
being in conformity with, or contrary to, the rule of law when the condemnation or
praise would simply be reflective of attachment to a particular conception of rights,
democracy or the just society. The message is therefore that if you wish to argue
about the justness of society do so by all means. If you wish to defend a particular
type of individual right then present your argument. Draw upon the wealth of
literature which addresses these matters directly. It is however on this view not
necessary or desirable to cloak the conclusion in the mantle of the rule of law,
since this will merely reflect the conclusion which has already been arrived at
through reliance on a particular theory of rights or the just society.
(c) The Rule of Law, Justice and Accountable Government
The view presented above has however been challenged. Those who support the
opposing view accept that the rule of law has the attributes mentioned in the
previous section, but they argue that the concept has more far-reaching
implications. Certain rights are said to be based on, or derived from, the rule of
law. The concept is used as the foundation for these rights, which are then used to
evaluate the quality of the laws produced by the legislature and courts.
It has also been argued that the rule of law provides the foundation for the controls
exercised by the courts over governmental action through judicial review. In this
sense the rule of law is expressive of how the state ought to behave towards
individuals in society. The rule of law is said to demand that governmental action
conforms to precepts of good administration developed through the courts, this
being an essential facet of accountable government in a democratic society. The
constraints imposed on government through judicial review are in part procedural
and in part substantive. The range of these principles varies, but normally includes
ideas such as: legality, procedural propriety, participation, fundamental rights,
openness, rationality, relevancy, propriety of purpose, reasonableness, equality,
legitimate expectations, legal certainty and proportionality. There has been a
vibrant academic debate as to whether such principles must be legitimated by
reference to legislative intent. There is nonetheless general agreement that it is the
courts that have developed the principles of judicial review over the past 350 years.
This general view has been advanced by a number of writers and judges, although
the precise detail of their analyses differ.
Thus Dworkin has argued forcefully that subject to questions of ‘fit’, the courts
should decide legal questions according to the best theory of justice, which is
central to the resolution of what rights people currently possess.
180 According to this theory, ‘propositions of law are true if they figure in or follow from the
principles of justice, fairness and procedural due process that provide the best constructive
 interpretation of the community’s legal practice’.
181 It is integral to the Dworkinian approach that, subject to questions of fit, the court should choose
between ‘eligible interpretations by asking which shows the community’s structure of institutions as a whole in a better light from the stand-point of political 

HOUSE OF LORDS Select Committee on the Constitution Relations between the executive, the judiciary and Parliament Report with Evidence Part 11

 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 89 

Events giving rise to the Reviews

In our view, none of the three cases which sparked controversy—the Afghani 

hijackers’ judgment, the Anthony Rice case and the failure to consider foreign

prisoners for deportation—demonstrates a clear need to consider amending the

Human Rights Act. The Lord Chancellor agrees and confirms it is the view of the

Government as a whole that none of them justifies amendment or repeal of the

HRA. We very much welcome the Lord Chancellor’s assurance that there is now

an unequivocal commitment to the Human Rights Act across the Government,

but, in our view, public misunderstandings will continue so long as very senior

Ministers make unfounded assertions about the Act and use it as a scapegoat for

administrative failings in their departments (paragraphs 9–41). 

The DCA Review

We welcome the DCA Review which in our view makes a fair and balanced 

contribution to the debate, and the Home Office’s unequivocal acceptance that the

HRA has not impeded in any way the Government’s ability to protect the public

against crime. Although the Review does conclude that the HRA has had a impact

on the Government’s counter-terrorism legislation, mainly because of the Chahal

case, we also welcome the Lord Chancellor’s conclusion that the HRA has not 

significantly inhibited the state’s ability to fight terrorism. We believe the 

Government has policy options to counter the terrorist threat in a way compatible

with the UK’s human rights obligations. We welcome the Lord Chancellor’s

acceptance that the HRA has not had any adverse impact on the Government’s

policy on immigration or asylum (paragraphs 42–48). 

The DCA review records a significant beneficial effect of the HRA on

development of policy by Government. We welcome the Review’s

acknowledgment of the importance of good guidance on human rights

compatibility in policy-making, the DCA’s embrace of a championing role in

relation to human rights and its publication of guidance for officials in public

authorities. We also welcome the Lord Chancellor’s commitment to consult us on

draft human rights guidance in future (paragraphs 49–59). 

The DCA Review concludes that the HRA has not significantly altered the

constitutional balance between Parliament, the Executive and the Judiciary. We

welcome the Lord Chancellor’s acknowledgment that it should be possible to give

fuller reasons explaining the Government’s view of the compatibility with human

rights obligations of proposed new legislation. We favour a free-standing Human

Rights Memorandum based on the existing ECHR memorandum edited if

necessary to protect the Government’s legal professional privilege (paragraphs 60–66). 

The DCA Review states that the HRA has been widely misunderstood by the

public and seeks to debunk some myths. We agree that there clearly exists a public

perception that the HRA protects only the undeserving, at the expense of the lawabiding

majority. We welcome the Review’s proposal to be proactive in debunking myths.

In our view, the public’commitment to human rights, and  to the HRA,depends on

wider dissemination of positive examples the HRA is making in practice,e.g.

for those in residential homes,the disabled, carers and council tenants

(paragraphs 67–80). 

The DCA Review rules out withdrawing from the ECHR or repealing the HRA

but does not rule out amending the HRA. We welcome the fact that the Lord

Chancellor sees no current need to amend the HRA as contemplated in the

Review and are clear that there is no need to amend the HRA or introduce specific

legislation to clarify that public safety comes first (paragraphs 81–85).

 90 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 

We asked the Lord Chancellor to consider primary legislation to clarify the

interpretation of “public authority” under the HRA. Though not ruling out the

possibility, he preferred a case-by-case-approach. We were disappointed by the

Government’s new concern about driving private providers out of the market by

widening the definition of “public authority”. It seems seriously at odds with the

Government’s avowed intention elsewhere in the Review to make a positive case

for the HRA. We do not see insuperable obstacles to drafting a simple statutory

formula which makes clear that any person or body providing goods, services or

facilities to the public, pursuant to a contract with a public authority, is a public

authority for the specific purposes of the HRA (paragraphs 86–92). 

We were very surprised the DCA’s “strategic review” of 2004 on implementing the

HRA has not been published and welcome the Lord Chancellor’s promise to think

about making a copy available confidentially to the Committee (paragraphs 93–96). 

The Home Office Review

This Review has not been published. Baroness Scotland drew our attention to the 

CJS Rebalancing Report. Most agencies in the criminal justice system found the

HRA helpful but also identified a “risk-averse culture” based on a “sometimes

cautious interpretation” of the ECHR and HRA. But there are few concrete 

examples. We welcome proposals for practical steps to improve understanding of 

how to implement the HRA and for a proactive approach to myth-busting. But in

our view the Home Office Review should be published. (paragraphs 97–107). 

Rebalancing the Criminal Justice System

The premise of many of the Government’s proposals is that the HRA has led to 

public safety being treated as of less importance than the human rights of terrorists

or criminals, or at least is perceived by the public to have had this effect. We

welcome the acceptance by Baroness Scotland that rebalancing must not be unfair

or unjust to the offender but better represent and support victims. Our concerns

about the Government’s attempt to overturn the Chahal case in the European

Court of Human Rights remain unalloyed. Attempting to distinguish between

inhuman and degrading treatment on the one hand and torture on the other is

unlikely to find favour, is unattractive and fails to solve the Government’s central

problem. We welcome the Government’s recognition that there is a question

whether the criminal justice system contains any in-built discrimination on racial

grounds. We also welcome the Government’s recognition that too many non dangerous

people with mental health problems continue to be imprisoned (paragraphs108–125).

Reforming the IND

We consider human rights issues raised by the Home Secretary’s proposals, 

notably over the intention to bring in a presumption that various categories of

foreign criminals will be deported. We are concerned by the Prime Minister’s

announcement of an automatic presumption of deportation, which raises the

prospect of deportation to a country where there is a real risk of treatment contrary

to Article 3 of the ECHR. On deportation of EU and EEA nationals, we are also

concerned that the Home Secretary may be blaming the courts for something laid

down by EU law. Finally, Baroness Scotland assured us there was no racial

profiling in deciding IND activity on high risk routes (paragraphs 126–137). 

Building a Human Rights Culture

We believe that a culture of respect for human rights is a goal worth striving for. 

We see the DCA Review as an important milestone in bringing one about. It  RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 91 

cannot be achieved exclusively through the courts, but needs shifts in public

perception. This in turn requires wider knowledge of the benefits of the HRA. But,

with the establishment of the Commission for Equality and Human Rights

pending, there remain unresolved questions about how far a culture of human

rights is developing. We will pursue these issues during the remainder of this

Parliament (paragraphs 138–146). 

ANNEX 2 

Extract from oral evidence given to the House of Commons’ Constitutional

Affairs Committee, 4 July 2006 

Q250 Jeremy Wright: Although you are no longer head of the judiciary, we know

that you still have an interest in the judiciary and are responsible for what happens

there. We also know that what has happened in the press recently has been a very

public and apparent argument between politicians and members of the judiciary.

Does it concern you that as a result of that very public spat the public may take a

different view of judges and lose a degree of confidence in them? 

Lord Falconer of Thoroton: I think you are wrong to say that the problem was 

necessarily a spat between the Government and judges. What has been happening 

over a period of time is that a lot of people have been saying that part of the

problem in relation to sentencing is the judges. A variety of parts of the media has

been explicitly critical in blaming the judges for a number of things that have

happened in sentencing. I believe that that has had an impact in undermining

confidence in the judiciary. Separately from that, there have been reports of rows

between the judges and the executive. I should make it clear that neither the

judges nor the executive wants such rows, nor do they believe that there is any

such row going on between them. They are both as concerned as they could be to

ensure that public confidence in the judiciary is maintained. But it goes deeper

than that. If people think there are rows going on between different bits of the

state that undermines their confidence in the ability of the state as a whole to deal

with the problems that it has to face, for example terrorism and crime. 

Q251 Jeremy Wright: Do you accept that clearly the judges are worried about this?

Several senior judges have expressed concerns about politicians—I do not refer

specifically to the Government but politicians generally—interfering in judicial

matters and making comments upon decisions in individual cases. Do you not

believe that that is causing a potential problem of public confidence? 

Lord Falconer of Thoroton: Judges have been careful not to criticise politicians at

any stage. I have made comments to the effect that the judges should not be made

the whipping boys for various problems. For example, the other day there was a

rather graphic piece in either the Daily Telegraph or The Times in which a judge

said that it might be time for him to resign and go off into the Thames or

something like that. Earlier in the same article it was said that an unnamed part time

judge was thinking of resigning.I know of such judge.I know of no judges who

are thinking of resigning because of that. Everybody involved, judges and executive

alike,is concerned to ensure that confidence is not lost but equally is 

aware that these events occur from time to time and the important thing is to cool

the temperature, identify the policy issues and get on with solving them.

92 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 

ANNEX 3 

Letter from the Lord Chief Justice, Lord Phillips of Worth Matravers, to

Circuit judges, 19 June 2006 

On behalf of the senior judiciary I want to share with you our grave concern at

recent media coverage of sentencing issues. 

The judiciary—and circuit judges in particular—have unfairly borne the brunt of

this criticism. As we all know, much of it is unbalanced and plainly wrong, and the

principles which judges are required to apply when making their sentencing

decisions have been ignored. We have great sympathy for those judges who

individually have been singled out for intemperate personal attack. 

The President of the Queen’s Bench Division and I … have been addressing and

continue to address these issues with the Lord Chancellor. Some of you will have

seen his answers during the Question Time programme on Wednesday evening,

and others will have heard his interview on the Today programme on Thursday

morning. These will have contributed to an improved public understanding of the

issues related to sentencing and we are grateful to him for putting the record

straight. 

It is quite legitimate for the media and commentators to criticise any particular

sentence and the judiciary recognise and accept that. But they are entitled to

expect such criticism to be accurate and objective. Personal and unmerited attacks

on the characters of individual judges can only damage the public’s understanding

of, and confidence in, the criminal justice system as a whole. We will continue to

do what we can to counter such unfair and damaging criticism. 

I and the senior judiciary would like to reassure you that judges who have been the

subject of unfounded media criticism have our sympathy and full support. 

Further Paper by Professor Anthony Bradley 

Summary

This paper has been written to consider whether and to what extent the content of 

my earlier paper, “The new constitutional relationship between the judiciary,

Government and Parliament”, has been affected by the Government’s decision to

create the Ministry of Justice. While that decision is of constitutional significance,

and it affects the relationship between the Government and the judiciary that

resulted from the Constitutional Reform Act 2005, many of the expressed

concerns are about the practical consequences of the decision, and there is no clear

argument to be made against the proposed Ministry of Justice on constitutional

grounds. If adequate assurances are given by the Government that meet these

concerns, the assurances should be placed on the public record. 

1. The Committee have given me the opportunity to consider whether changes or

additions are needed to my paper, “The new constitutional relationship between

the judiciary, Government and Parliament”, in light of the Government’s decision,

announced on 29 March 2007, to move responsibility for prisons and the

probation service from the Home Office to the Department for Constitutional

Affairs (to be re-named the Ministry of Justice), the changes to take effect on

9 May 2007. 

2. The main aim of that earlier paper was to discuss the structure of relations

between the judiciary, on the one hand, and Government and Parliament, on the 

 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 93 

other, resulting from the Constitutional Reform Act 2005. While the paper

assumed that the ministerial and departmental arrangements resulting from that

Act would continue, it did not discuss the manner in which the new statutory

functions of the Lord Chancellor would be performed within the Department for

Constitutional Affairs. However, the creation of a Ministry of Justice and the range

of functions of the Ministry will have implications for the position of the courts

and the judiciary that the Committee may wish to address. 

3. The idea of a Ministry of Justice has received attention at various times since it

was recommended by the Haldane Report on the machinery of government in

1918.

166

 Proposals for such a Ministry in the years since then were usually blocked

by the argument that this was not necessary (or not desirable) because of the office

of Lord Chancellor, whose responsibilities were both executive and judicial in

character. Fears were expressed that the judiciary would be prejudiced were their

affairs to be handled by an ordinary Whitehall department. The idea of a Ministry

of Justice encountered opposition from the Home Office, because of the latter’s

historic responsibility for criminal justice and criminal law. Indeed, the difficulty of

how to locate responsibility in government for the criminal justice system

(including criminal law) has probably been the decisive factor that explains why a

Ministry of Justice for England and Wales has not been created until now. 

4. The Constitutional Reform Act 2005 both brought to an end the historic

combination of the Lord Chancellor’s judicial and executive functions, and

maintained the office in being but with defined statutory responsibilities relating to

the judiciary. It is significant that the Act gave special protection to these

responsibilities by excluding them from the customary “machinery of government”

power of the Prime Minister to re-organise Whitehall departments; in law, this

power is exercised by means of Orders in Council under the Ministers of the

Crown Act 1975. Primary legislation would be needed if the office of Lord

Chancellor in its new form were to be abolished or the powers and duties of that

office were to be transferred. But the office of Secretary of State for Constitutional

Affairs is not so protected, and primary legislation is not needed to give effect to

the Government’s recent decision. The office of Lord Chancellor will continue in

being, as required by the 2005 Act, but it will be held with the position of

Secretary of State for Justice, rather than that of Secretary of State for

Constitutional Affairs. 

5. There was certainly a case to be made in 2003 for the decision then taken to

replace the former Lord Chancellor’s Department by the Department for

Constitutional Affairs (despite the inept way in which the re-organisation was

handled). There is also now a case to be made for re-naming the department and

for extending its responsibilities for criminal justice. But it is unfortunate that 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.

It has long been the practice in British government for departmental structure to

change in response to political judgments made by the Prime Minister and in 

166 Cd 9230, 1918. For comment on that report, and the controversy that it created, see R Stevens, The 

Independence of the Judiciary: the view from the Lord Chancellor’s Office (1993, chap 2). In 1981 the Home Affairs Committee of the House of Commons recognised the advantages of unifying the component parts of the criminal justice system in a Ministry of Justice but Lord Hailsham, then Lord Chancellor, said: “I

regard myself as the Minister of Justice but I would not desire to have either the prosecuting process or the

penal treatment process under my responsibility because I think that they are incompatible”: quoted in J L

Edwards, The Attorney-General, Politics and the Public Interest (1984), p 193. 

94 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 

response to changing political circumstances. A further instance of this practice

was seen with the decision announced on 29 March 2007. Whereas departments

in Whitehall and their ministers must accept that their tasks may be re-shuffled at

short notice, the added factor here is the impact of the re-organisation on the

judiciary and the courts. At the least, it would appear that there was a lack of full

consultation with the judiciary before the decision was announced. Arguably,

private communication involving the Lord Chief Justice and his most senior

colleagues is not sufficient in a matter that may be seen as affecting the

constitutional position of the courts, so recently established by the 2005 Act. A

fuller and more open consultation could, for instance, have confirmed that the

changes do not in fact pose a threat to that position. 

6. To move on from the question of consultation, while it will be a novelty in

British government to have a Ministry of Justice by that name, I do not consider

that there is a case to be made against such a ministry based on fears that this

might endanger the position of the judiciary. Reasons for this view include the fact

that many countries in western Europe have a Ministry of Justice, as indeed do

numerous Commonwealth countries (where the positions of Minister of Justice

and Attorney-General may be held together, as for instance in New Zealand).

Moreover, the relationship between judiciary and executive was placed on a new 

statutory basis in 2005. In my view, the essential features of that relationship are 

not affected by the new departmental structure.

167 Indeed, but for the problem presented by the Home Office’s responsibility

 for criminal justice, “Ministry of Justice” would have been a suitable name for

 what in 2003 was created as the Department for Constitutional Affairs. 

7. What may have caused the greatest current concern is the placing of

responsibility for prisons and the probation service within the Ministry of Justice.

These matters are of an operational kind that distinguishes them from

responsibility for criminal law, relations with the courts and so on.

168 The case for moving these services to the Ministry of Justice appears in part to be the wish to

enable the Home Office’s remit to be re-focussed, and in part to enable there to be

a “joined-up” system of criminal justice. The points made for questioning that

approach include the following: (a) the Minister for Justice, who will also hold the

position of Lord Chancellor, will in all probability be appointed from the House of

Commons, and may have no legal qualifications; (b) resources available to the

courts and judicial system will suffer if within the same department they are

competing with funding for prisons; (c) administration of prisons will call for an

approach that is incompatible with the leading role played by the Ministry of

Justice in respect of human rights legislation, and will erode the Lord Chancellor’s

statutory commitment to maintain the rule of law; (d) the Ministry may wish for

political reasons to influence judicial practice on sentencing (for example, to

reduce the prison population), thus undermining the statutory commitment to

maintain judicial independence; (e) the ministerial attention that will need to be

given to the prisons may as a practical matter cause less time to be spent on other

aspects of the Ministry’s remit. Concerns of this kind about the future operation of 

 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 95 

the new arrangements are of a practical kind and are difficult to assess by

constitutional criteria. 

8. Evidence dealing with these matters has been given by the Lord Chancellor

(Lord Falconer) to committees in the House of Commons.

169 Thereafter, he

assured the House that the Lord Chief Justice, Lord Phillips, had made it clear

“that the senior judiciary have no objections in principle to the creation of a

Ministry of Justice, subject to the provision of safeguards to protect the

independent administration of justice”.

170  However, Lord Woolf has given evidence about his concerns to the Home Affairs Committee,

171 in the course of which, before expressing reservations about the decision, he said: “Obviously,

there is logic in having a ministry of justice”. Lord Woolf explained the importance of the departmental changes by saying that there is “much more interplay between the departments and courts than is sometimes appreciated”; and it had been difficult to establish an effective sentencing policy “because of the highly political nature of sentencing”. 9. It is, certainly, in the area of criminal justice, including sentencing, that the

most difficult questions for the structure of the justice system arise. As Lord Falconer emphasised to the Commons’ Constitutional Affairs Committee on 17 April 2007, there will continue to be a trilateral relationship in government involving (1) Home Office responsibility for protecting the public against crime,

for the incidence of crime, and for police and crime-detection; (2) the functions of the Attorney-General in supervising the Crown Prosecution Service; and (3)

Ministry of Justice responsibility for the criminal law (both substance and

procedure, including evidence and modes of trial), criminal courts and judicial

process, and the penal system. In the course of his evidence, he said that one of the

strongest lessons learned by government since 1997 is that “all of the bits of the

criminal justice system – the police, the prosecutors, the courts and the prisons

and probation – have to work together as closely as possible” (emphasis supplied).

The qualification “as closely as possible” is from a constitutional viewpoint all important.

The reason that the criminal justice system comprises distinct components of police, prosecutors,

courts and penal institutions is that a criminal justice founded upon the rule of law

and on the due separation of powers requires both the existence of distinct functions,

and also the development of separate institutional and professional skills. Some

forms of“working together” or institutional co-operation would blur lines of demarcation

(such as the process of a fair criminal trial, where judicial impartiality is required as between the

prosecution and the defence).10. It is essential that the judiciary and the 

criminal courts should not be drawn into endorsing a simplistic approach to

criminal justice in which current administrative or executive wishes cause harm

 to the public image of the criminal process. From this viewpoint, 

the leading role to be played by the Ministry of Justice may be given a cautious welcome. It should, for instance, reduce the tendency for government ministers to appear to blame the judges for problems

caused by recent legislation or by government policies.

172 And it must be hoped that it will curb the excessive tendency in recent years for the Home Office to

96 RELATIONS BETWEEN THE EXECUTIVE, THE JUDICIARY AND PARLIAMENT 

resort to legislation by Parliament as a panacea for dealing with every new concern

in the media and public opinion over crime and sentencing decisions. What would

be less welcome would be a situation in which the Ministry of Justice is nominally

the lead department on matters relating to the criminal law, but the driving

political force remains with the Home Office. And it would be unfortunate if

problems arising in the operation of prisons were to cause the Ministry of Justice

to seek to place responsibility for the problems on the judges’ sentencing decisions.

It is relevant here to note that, as a result inter alia of European human rights law,

discretionary decisions determining the release of long-term prisoners are now

made by the Parole Board or by the judiciary, no longer by the Secretary of State. 

11. I have already (in paragraph 8 above) quoted from the Lord Chancellor’s

recent statement confirming that the senior judiciary “have no objections in

principle to the creation of a Ministry of Justice, subject to the provision of safeguards

to protect the independent administration of justice” (emphasis supplied). The

Committee may wish to inform itself as to the concerns that gave rise to the need

for such safeguards and as to the safeguards that have been or will be given.

Assuming that adequate assurances are given to the Lord Chief Justice, it would be

appropriate for these to be placed on record, and this might possibly be best done

by the preparation of a revised form of the Concordat, that could take full account 

of the creation of the Ministry of Justice.

173.12. To conclude, my earlier paper remains relevant in the new situation caused by

the decision to create a Ministry of Justice, a decision that was made before the

new relationships resulting from the Constitutional Reform Act 2005 have had

time to settle down and stand the test of experience. The decision to create the

new Ministry is of some constitutional significance, and understandable fears have

been expressed about it, particularly in view of possible adverse effects upon the

judiciary and the machinery of justice, and the apparent lack of full consultation

with the judiciary. If acceptable assurances are given by the Government about the

future, they should become a matter of public record. 30 April 2007 

 

HOUSE OF LORDS Select Committee on the Constitution Relations between the executive, the judiciary and Parliament Report with Evidence Part 10

APPENDIX 4: PAPER BY PROFESSOR ANTHONY BRADLEY: THE
NEW CONSTITUTIONAL RELATIONSHIP BETWEEN THE JUDICIARY,
GOVERNMENT AND PARLIAMENT; AND FURTHER PAPER:
CHANGES IN THE MACHINERY OF GOVERNMENT AFFECTING THE
DEPARTMENT FOR CONSTITUTIONAL AFFAIRS AND THE HOME
OFFICE 
Summary
The paper draws attention to aspects of the present constitutional relationship 
between judiciary, Government and Parliament. Section A (paras 1–9) explains
the need for an independent judiciary in a constitution founded on democracy and
the rule of law; in particular, the public law jurisdiction of the courts is likely to
bring them into controversy with the Government. Section B (paras 10–11)
outlines the main changes made by the Constitutional Reform Act 2005. Section
C (paras 12–20) discusses the effect of these changes on the courts and considers
whether judicial independence is inconsistent with some forms of accountability.
Section D (paras 21–25) outlines the main features of the Human Rights Act 1998 
and Section E (paras 26–33) examines whether the Act has affected the 
constitutional balance between Parliament, executive and the courts. It is
concluded that the Act significantly extended the jurisdiction of the courts by
enabling the higher courts to review primary legislation for compatibility with the
European Convention on Human Rights, though the sole relief that may be
granted is a declaration of incompatibility. Section F (paras 34–58) examines the
extent to which the law permits excessive or abusive criticism of the judiciary by
the media, by parliamentarians and by Ministers, and draws attention to recent
criticism of judges by Ministers. It is proposed (para 58) that the Ministerial Code
should contain a new chapter setting out the conventions in relation to the
judiciary that Ministers must observe. 
A The Constitutional Role of the Judiciary
1. The context for this inquiry by the Committee on the Constitution is the 
changing relationship between judiciary, Government and Parliament following
the Constitutional Reform Act 2005 (hereafter, “the CRA” or “the 2005 Act”).
The primary aim of that Act was to change the law relating to the constitutional
position of the judiciary. For this reason, this paper focuses on the relationship
between the judiciary, on the one hand, and Government and Parliament, on the
other. It does not deal with the Government/Parliament relationship. While the
paper is not a comprehensive review of the subject, it does examine the impact of
the Human Rights Act 1998 (hereafter, “the HRA”), since that Act features
prominently in current debate on the role of the judiciary. 
2. The interaction of judiciary, executive and legislature is a fundamental
aspect of any constitution founded on democracy and the rule of law. Unless there
is an independent judiciary, able to interpret and apply laws in a manner based on
legal rules and principles rather than on political intentions or calculations, the
concept of law itself is brought into question. Article 6/1 ECHR recognises the
right of every person “in the determination of his civil rights and obligations or of
any criminal charge against him” to “a fair and public hearing within a reasonable
time by an independent and impartial tribunal established by law”. In 2002, a
high-level international study of challenges facing the judiciary in the 21
st
 Century led to the issue of The Bangalore Principles of Judicial Conduct.
114
 The preamble to
that document emphasised that the implementation of all rights, including human
rights, “ultimately depends on the proper administration of justice”; and that a
“competent, independent and impartial judiciary” is essential if the courts “are to
fulfil their role in upholding constitutionalism and the rule of law”. 
3. Every democratic constitution distinguishes, in whatever terms, between
the tasks of the legislature, executive and judiciary and contains a statement,
however brief, of the distinctive role of the judiciary. Even in countries that have a
written constitution based on the formal separation of powers, the significance of
judicial independence cannot be discovered from the written text alone. Like other
constitutional principles, judicial independence is heavily influenced by a country’s
history and culture. Although aspects of the principle have a long pedigree in this
country (for instance, the Act of Settlement 1700 declared that judges in England
hold office during good behaviour, not at pleasure of the Crown), the position of
the judiciary has evolved over the years and will continue to do so in the light of
changing social and political factors. By contrast with that evolutionary process,
the CRA in 2005 made extensive changes in the institutional framework. At the
same time, the CRA declared that 
(i) despite these structural changes, the existing constitutional principle of the rule
of law is not adversely affected (section 1) and 
(ii) the executive must continue to uphold the independence of the judiciary
(section 3). However, the Act did not define the content of the rule of law. Nor
did it summarise the notion of judicial independence, other than to outlaw
attempts by Ministers to influence particular judicial decisions “through any
special access to the judiciary” (section 3(5)). 
4. All legislation, and in particular the CRA, has to be read against the
inherited constitutional background if it is to be fully understood. In 1995, the
relationship between Parliament, executive and judiciary was summarised by
Lord Mustill in these terms: 
“It is a feature of the peculiarly British conception of the separation of
powers that Parliament, the executive and the courts have each their
distinct and largely exclusive domain. Parliament has a legally
unchallengeable right to make whatever laws it thinks fit. The executive
carries on the administration of the country in accordance with the
powers conferred on it by law. The courts interpret the laws, and see
that they are obeyed”.
115 More recently, Lord Bingham has said: 
“Whatever overlap there may be under constitutions on the Westminster
model between the exercise of executive and legislative powers, the
separation between the exercise of judicial powers on the one hand and
legislative and executive powers on the other is total or effectively so.”

5. But judicial independence is only part of our constitutional structure. At the 
heart of this structure is the enactment of legislation by Parliament (acting almost
                                                                                                                                   

116invariably on the proposal of the executive). That structure must also include a
place for the common law, since in deciding cases the courts frequently apply rules
and principles that have not been enacted by Parliament. While rules of the
common law may be abrogated or amended by Parliament, the traditions of the
common law largely determine the approach taken by the courts in deciding new
questions of law that arise, and in interpreting and applying laws made by
Parliament.
117 In recent years, the courts have stressed the extent to which the
common law influences the task of applying new legislation, particularly when
fundamental rights and liberties are affected. Lord Browne-Wilkinson said in
1997, 
“…Parliament does not legislate in a vacuum: statutes are drafted on the
basis that the ordinary rules and principles of the common law will apply
to the express statutory provisions. … As a result, Parliament is
presumed not to have intended to change the common law unless it has
clearly indicated such intention either expressly or by necessary
implication.”
118 This principle has been applied in particular to what have sometimes been called 
‘fundamental constitutional rights’.
119 The background of constitutional democracy against which Parliament legislates includes ‘the principle of legality’.Lord Hoffmann has said that this principle “means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by
general or ambiguous words”. 120 6. The duties of the judiciary include applying and enforcing the laws, not merely against private individuals and corporations but if necessary against the executive itself. This duty is a key aspect of the constitutional position of the courts and the executive. As Nolan LJ said in 1992, when the Home Secretary was held to have acted in contempt of court in disregarding a judge’s order to bring
back to the United Kingdom a Zairean asylum-seeker,  “The proper constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful
province, and that the executive will respect all decisions of the courts as to what its lawful province is”.
121 This formulation properly stresses the element of respect that is due from an all-powerful executive to what has sometimes been called ‘the least dangerous branch’, the judiciary. The statement must of course be read subject to the legislative authority of Parliament. Often legislation will have a decisive effect in determining the limits of the ‘lawful province’ of the executive, but this is not necessarily the case in a dispute involving the grounds of judicial review, which have never been the subject of comprehensive legislation by Parliament. 
7. Many aspects of the judicial review of administrative action may be traced
back for several centuries, but this jurisdiction of the courts (derived from the
common law) is now remarkably prominent. In 2002, Lord Steyn wrote: “Public law has been transformed over the last 30 years. The claim that
the courts stand between the executive and the citizen, and control all
abuse of executive power, has been reinvigorated and become a
foundation of our modern democracy”.
122
8. On 31 October 2006, a senior judge, Maurice Kay LJ, gave evidence to the 
House of Commons’ Constitutional Affairs and Home Affairs Committees. His
opening summary included the following points: 
(1) “one of the hallmarks of a mature democracy is that political power
must be exercised in accordance with the law” (which he took to be
the meaning of ‘the rule of law’ as used in the CRA 2005, s 1) and
“in any mature democracy, the judiciary has an important role in
securing compliance by government and other public authorities with
the law”; 
(2) “long before the Human Rights Act, the courts developed and
expounded the scope of judicial review …. They did so on a case-bycase
basis,the centrepiece of the modern jurisprudence being the GCHQ case in 1985, which
defined both the principles of modern

judicial review and its limits.It madeclear …that there were considered to be certain judicial no-go areas, including matters of national security and foreign relations. Indeed, that judicial selfrestraint still exists
at common law…”;

(3) “the Human Rights Act requires [the speaker’s emphasis] judges to
approach a great deal of public law litigation in new ways …” and “all
this is leading the courts into new territory” (instanced by the case of the
Belmarsh detainees, A v Secretary of State)
123
; and
(4) “in this … the courts are doing no more and no less than carrying out 
their constitutional function of interpreting and applying the law—in this
case, the law enacted by Parliament”. 
Finally, and more controversially, Maurice Kay LJ observed that in his view, which
differed from what the Lord Chancellor (Lord Falconer) had recently said, the
task of making decisions under the HRA “is a matter of judgment according to the
law, not discretion”. He further remarked that cases under the HRA “are more
illustrative of self-restraint on the part of the judiciary than the sort of militant
activism that is sometimes caricatured in the media”.
124

9. It will be evident, even apart from the HRA, that the public law jurisdiction 
of the courts requires them to review the legality of executive decisions. The
results of these cases are often unwelcome to ministers and administrators, and
may be particularly controversial in the media or in political terms. Successive
governments have recognised the far-reaching implications of judicial review, at
least since the pamphlet ‘The Judge over Your Shoulder’ was issued to civil
servants in 1987. The need for judicial independence in this area is obvious, as
also in the area of criminal justice. Section F(3) of this paper will draw attention to
recent instances in which Ministers have expressed their irritation at judicial
decisions that go against their policies. B The Constitutional Reform Act 2005
10. The principal structural changes made by the CRA may be very briefly 
summarised.
125
 They have provided for greater formal separation between
government and judiciary (and, as regards the new Supreme Court, between
Parliament and judiciary) and for a new statutory interface in England and Wales
between government, in the person of the Lord Chancellor, and the judiciary,
represented by the Lord Chief Justice. 
(A) Contrary to the original intention of the Government, the Lord Chancellor
remains in being, but he has lost his status as head of the judiciary in England and
Wales and may not now sit as a judge. This greater separation between executive
and judiciary made it essential for many functions of the Lord Chancellor to be reassigned,
some being transferred to the Lord Chief Justice,others being exercisable jointly by the Lord Chancellor
and the Lord Chief Justice.The Lord Chancellor retains many important executive functions relating
to the judiciary (including funding the system of justice,making judicial appointments in accordance
with new statutory rules, and approving procedural rules for the courts).Many of these functions are ring-fenced,to ensure that they are not transferred to another Minister by the Prime Minister without further
primary legislation.
126 Under the CRA, the Lord Chancellor is not required to have had a legal career, nor to be a member of the House of Lords. 
(B) The Lord Chief Justice is now President of the Courts and Head of the Judiciary of England and Wales. He is responsible: 
(i) for representing the views of the judiciary to Parliament, to the Lord Chancellor and to other Ministers; 
(ii) for maintaining appropriate arrangements for the welfare, training and guidance of the judiciary within resources made available by the Lord Chancellor; and 
(iii) for maintaining appropriate arrangements for the deployment of the judiciary and the allocation of work within courts.
127 These broad duties are accompanied by many specific responsibilities, some of which are exercisable jointly with the Lord Chancellor, or with the concurrence of the Lord Chancellor. 
(C) There will be a new Supreme Court for the United Kingdom, to take over the appellate functions now performed by the Appellate Committees of the House of Lords, together with the power to decide devolution issues transferred from the Judicial Committee of the Privy Council. This separation between the ‘Law Lords’ and the House does not mean any change in the extent of appellate jurisdiction.New provision has been made for funding and administering the Supreme Court. The CRA sets out in detail the procedure for the selection and appointment of judges to the Supreme Court, in place of the present practice by which the Prime Minister nominates to the Queen persons for appointment as Lords of Appeal in
Ordinary. 
(D) Judicial appointments in general are entrusted to the Judicial Appointments Commission, and are no longer a matter primarily for decision by Ministers.  Within the framework of the CRA, it will be for the Commission to give substance to the statutory rule that selection must be solely on merit (section 63(2)); and the Commission must have regard to the need to encourage diversity in the range of persons available for selection (section 64(1)) 
(E) A new post of Judicial Appointments and Conduct Ombudsman is created to deal with two rather different classes of complaint: (a) in relation to the observance of proper procedure in judicial appointments, and (b) in respect of the conduct of judges. 
(F) While the historic tenure of senior judges derived from the Act of
Settlement continues (subject to a new power to suspend a judge while
parliamentary proceedings for removal are pending: section 108(6)), the removal
of other judges by the Lord Chancellor is now subject to statutory procedures; in
general, disciplinary powers in respect of the judiciary (including power to
suspend) may be exercised by the Lord Chief Justice, acting with the agreement of
the Lord Chancellor. 
11. The cumulative effect of the changes made by the CRA is very extensive.
Alongside the statutory provisions has to be read a document known as the
Concordat, entitled Constitutional Reform: the Lord Chancellor’s judiciary-related 
functions, prepared in January 2004 while the Constitutional Reform Bill was 
before the House of Lords, at a time when the Government was proposing to
abolish the office of Lord Chancellor and it was not known what the attitude of the
judiciary would be to the proposals. The Concordat represented an agreement
between the Lord Chancellor and the Lord Chief Justice (then Lord Woolf)
regarding the future exercise of the Lord Chancellor’s judiciary-related functions,
and as such it facilitated the passage of the Constitutional Reform Bill through
Parliament. 
C. In what ways has the CRA affected the constitutional relationship
between Parliament, the Executive and the Judiciary? 
12. The structural changes in law made by the CRA will in time be
supplemented by new working relationships, understandings and conventions, the
foundations for which are already being laid. The present inquiry by the
Committee will assist in that process. The removal of the Lord Chancellor’s
judicial status and the presidential functions of the Lord Chief Justice necessarily
make for greater separation between executive and judiciary. So too, the new
Supreme Court will make for a clear separation between the final appeal court and
Parliament. But these changes may be more important in a formal, analytical
perspective than in practical terms. Indeed, if the essentials of judicial
independence were not adversely affected by the various roles of the Lord
Chancellor, his removal from the judiciary will not affect judicial decisions.
Similarly, if the independence of the Law Lords has not been at risk because of
their status at Westminster, their decision-making will be unaffected by the change
of location. Nonetheless, these structural changes are important in constitutional
terms, and will make the distinct status of the judiciary more visible in the media
and in the public eye. 
13. Reference has already been made to the Concordat between the Lord
Chancellor and the Lord Chief Justice that was drawn up in January 2004. This
document has an uncertain constitutional status. Many of its provisions have been
superseded by what eventually appeared in the CRA 2005. If it contains
continuing principles of value that should govern relations between the judiciary
and the Government, the document should be revised to take account of the                                                    provisions of the Act, and its status clarified. Rather than it disappearing from
sight, a regular review and updating of the Concordat in the light of experience
could be of value. 
14. The new procedures for appointing judges were welcomed on all sides
when the CRA was in Parliament. Ministers have given up a significant power that
in many countries is still retained by the executive, but the full effect of the
changes will not be felt immediately. If judges in recent years have been selected
primarily on the basis of merit, then the new powers of the Judicial Appointments
Commission will not directly affect the kind of appointments made. But it remains
to be seen how a test of merit will affect the most senior appointments, where
candidates will need a range of skills that include the capacity for handling the
administrative tasks that under the CRA will be borne by the senior judiciary. At a
lower level in the hierarchy, new career patterns in the legal profession may emerge
once the Commission’s policies for increasing the diversity of applicants for
appointments begin to bear fruit. 
15. While judicial decision-making may be unaffected by these structural changes, significant new burdens are placed on the Lord Chief Justice. He or she will have to bear the brunt of representing the judiciary vis-à-vis Parliament, the Government, the media and the public at large. Other senior judges will acquire
executive-type responsibilities. The Judges’ Council was re-formed in 2002   and it may have an increasingly important role as a forum accessible to the Lord Chief Justice for enabling opinions broadly representative of the whole judiciary to be formulated. Moreover, while the focus in the re-organisation has been on the role
of the Lord Chief Justice, the President and Deputy President of the new Supreme Court will have their own statutory functions that may bring them into public prominence in matters affecting the highest level of appeal. 
16. The main changes made under the CRA took effect only in April 2006 and it is too soon to know how robust the structure based on the separated functions of the Lord Chancellor and the Lord Chief Justice will be. Difficult questions are likely to arise in respect of funding and resources; maintaining a public
understanding of judicial independence; and determining the proper limits and forms of judicial accountability, in particular to the executive and to Parliament.The former Home Secretary, Mr Charles Clarke MP, recently called for 
“a mature discussion between parliamentarians and the most senior
lawyers in this country about how the criminal justice system deals with
the new pressures arising from the possibility of suicide bomb terrorist
attacks. One of the consequences of the Human Rights Act is that our
most senior judiciary are taking decisions of deep concern to the security
of our society, but without any responsibility for that security. One of
my most depressing experiences as Home Secretary was the outright
refusal of the Law Lords to discuss the principles behind these matters
in any forum at all, public or private, formal or informal. To this day I
have never met a Law Lord. That attitude has to change.” 
129 . 17. An indication of the possible pitfalls that open up if the judiciary are to  be more closely engaged in the process of executive policy-making, as Mr Clarke would wish, was given by the experience of senior judges when they were consulted about the Government’s proposal in the forthcoming Asylum 
128  and Immigration (Treatment of Claimants etc.) Bill 2004 to substitute review by the Asylum and Immigration Tribunal for the right to judicial review of immigration and asylum decisions. When the judges replied to the Home Office that the proposed exclusion would not work for reasons that they set
out, the response of the Government was to write in additional provisions that sought to fire-proof the exclusion clause against any restrictive judicial interpretation. There may be some matters directly affecting the working of the courts upon which the Lord Chief Justice and senior judges administering the system of justice may necessarily need to be consulted. But it should be the exception rather than the rule for new government policies to be put out to consultation with the judges. If expert advice about the likely effects of
legislation is needed by government, there are many qualified people to supply it who are not judges. 
18. So far as judicial accountability is concerned, it must be emphasised that judicial independence requires that judges are not directly accountable either to the executive or to Parliament for their decisions. The primary form of accountability comes from four aspects of judicial process: (a) most court hearings take place in public, (b) judicial proceedings are usually adversarial; (c) judicial decisions must deal with the submissions of the parties; and (d) most decisions  may be challenged by appeal to a higher court. Even in the case of the Supreme Court, further proceedings are possible on matters of EU law or ECHR law. As an
agency of state power, the judiciary as a body are, or ought to be, accountable forthe general manner in which the court system serves the public at large. But methods of ensuring this form of accountability must not be such as to prejudicejudicial independence. 
19. In particular, these considerations must restrict the ability of select committees at Westminster to summon judges to give evidence and question the mabout judicial decisions. There are of course matters on which dialogue between judgesjudges and parliamentarians could be useful.
130 When the chief justice of any partof the United Kingdom exercises his new right to lay written representations before the relevant parliament (CRA 2005, s 5), this should lead to a hearing
before a committee of that parliament: it may be assumed that the chief justice would welcome the opportunity of making his concerns about the judiciary or the administration of justice better known. 
20 A separate paper would be needed to deal with these questions in respect of the system of criminal justice. Two brief points may be made. (a) It ought not to be stated or implied by Ministers who seek to ‘re-balance the system of criminal justice’ that the judges are not acting in the interests of the law-abiding
public, or that appeal judges allow appeals to succeed on technicalities. (b) In responding to public concern about crime, governments too frequently have recourse to legislation that removes judicial discretion in sentencing and substitutes an automatic minimum sentence when specified conditions exist. Currently it appears to be realised that judicial discretion in sentencing may indeed be a way of avoiding anomalous results that attract headlines in the press.Frequent and excessive encroachment by Parliament on the sentencing process(as seen in the Criminal Justice Act 2003) is likely to have undesirable sideeffects.

131    D Human Rights Act 1998
21. The main changes made by the HRA are well-known. With the object of 
‘bringing rights home’ to Britain, all courts and tribunals must when relevant
take account of the Strasbourg case-law (s 2). All legislation in the United
Kingdom must where it is ‘possible’ be interpreted consistently with the
Convention rights (s 3). Where this is not possible in the case of primary
legislation, the higher courts may declare that the legislative provision is
incompatible with the Convention (s 4). All public authorities, including the
courts but not Parliament, are under a duty to exercise their functions
consistently with Convention rights, except where this is excluded by mandatory
provision in primary legislation (s 6). The courts may provide appropriate
remedies in proceedings in which issues as to Convention rights are raised (ss 7–
9), including the award of compensation where this would be consistent with the
approach of the Strasbourg court. When a declaration of incompatibility has
been issued by a higher court, the incompatibility may be removed by a ‘remedial
order’, subject to heightened parliamentary scrutiny (s 10). The Minister in
charge of a Government bill in either House must before Second Reading state
either that the bill is compatible with the Convention rights or that, while this is
not the case, the Government wishes the House to proceed with the bill (s 19). 
To this framework established by the HRA must be added the Joint Committee 
on Human Rights at Westminster, which maintains a continuing scrutiny of
Government bills, ministerial statements and proposed remedial orders, and
from time to time reviews the interpretation of the Act by the courts. 
22. The impact of the Act and its application by the courts are now the subject
of much examination in books and articles, discussion in the media, and reviews
by government departments and Westminster committees. Earlier this year, there
was public controversy over the HRA and its effects: three high-profile cases were
considered by some to prevent the Government from ensuring public safety, and
the Prime Minister asked the Lord Chancellor and the Home Secretary to conduct
reviews of the Act’s impact. The review by the Department for Constitutional
Affairs on implementation of the HRA was published in July 2006; at the same
time the Home Office published papers dealing with the criminal justice system
and the Immigration and Nationality Directorate.
132
23. In November 2006, the Joint Committee on Human Rights published a 
report on the DCA and Home Office reviews.
133
 The Joint Committee’s summary
of its report is annexed to the present paper (see annex 1). The Committee
welcomed the DCA review, which “in our view makes a very fair and balanced
contribution to this important debate” (para 43). The Committee noted the
conclusion in the review “that the HRA has not significantly altered the
constitutional balance between Parliament, the Executive and the Judiciary” but
drew attention to a “significant omission” from the report, namely any substantial
consideration of the impact of the Act on the relationship between the executive
and Parliament (para 60). 
24. Since the departmental reviews and the Joint Committee’s inquiry were
largely prompted by allegations in the media about the damaging effects of the
HRA on national security, it is notable that the Government and the Joint 
  Committee agree with the view that the HRA “has not significantly altered the
constitutional balance between Parliament, the Executive and the Judiciary”. 
25. While I readily agree that the constitutional equilibrium has not been put at
serious risk by the HRA, I find it difficult to accept that the HRA has not changed
the constitutional relationship between Parliament, executive and judiciary.
Constitutions evolve, and the United Kingdom constitution is inherently likely to
change, both because of its reliance on conventions, and because Parliament’s
authority extends to constitutional matters.
134
 Both the HRA and the CRA have, in
various ways, affected the relationship between Parliament, the executive and the
Judiciary, as indeed they were intended to do. The range of changes will be
outlined in the next section of this paper. 
E. In what ways has the HRA affected the constitutional balance between
Parliament, the Executive and the Judiciary? 
26. In its White Paper in 1997, outlining the scheme of the Human Rights Bill,
the Government stated that it had 
“reached the conclusion that courts should not have power to set aside
primary legislation, past or future, on the ground of incompatibility with
the Convention. This conclusion arises from the importance which the
government attaches to Parliamentary sovereignty.”
135
With this limitation, the scheme in the HRA went as far as it could to enabling the 
courts to protect Convention rights except where they are prevented from doing so
by primary legislation. There have been innumerable statements by judges and
Ministers that the HRA keeps in being the fundamental rule of parliamentary
sovereignty. Even where the courts declare a provision in primary legislation to be
incompatible with Convention rights, as they did in the case of the Belmarsh
prison detainees,
136
 that declaration “does not affect the validity, continuing
operation or enforcement of the provision in respect of which it is given” (HRA, s
4(6)(a)). Nor is there an enforceable legal obligation derived from the HRA to
require either Parliament or the Government to alter national law so that it
complies with the ECHR. (Such an obligation does however exist at international
law by virtue of the ECHR; and the possibility of a remedial order being made
under section 10 HRA must add to the political pressure on the Government that
may arise to ensure that national law complies with the ECHR). Moreover, section
19 HRA expressly envisages that Ministers may ask Parliament to enact legislation
that is inconsistent with the Convention. 
27. Nevertheless, a statement that the sovereignty of Parliament is not affected
tells only part of the story, since the HRA extended the jurisdiction of the courts to
deal with matters that previously were not arguable before a judge. The duty under
the HRA to interpret all legislation where it is possible to do so consistently with
the Convention is a much stronger duty than that which previously stemmed from
the principle that certain common law rights could not be taken away except by
express enactment.
137 The new interpretative duty, together with the possibility of
a declaration of incompatibility if an interpretative outcome is not possible, takes  the courts into the examination of questions that, apart from the HRA, would have
been regarded as political questions.
138
 In respect of delegated legislation, the HRA
empowers the courts to quash delegated legislation on Convention grounds; this
power is similar to, but goes beyond, the long-established power of the courts to
quash delegated legislation that is ultra vires. 
28. Moreover, for a superior court to decide to make a declaration of
incompatibility, the court must first have reached a view on the substance of a
statute legislation that the courts could not have been asked to make apart from
the HRA. The fact that the HRA does not give power to the courts to quash
primary legislation on Convention grounds is a limitation on the remedy that the
courts provide, not on the substance of what may be argued in court and if
necessary decided. 
29. This is not to suggest that the new powers entrusted to the courts by the
HRA are unsuitable for judicial decision-making. A power to review primary
legislation on Convention grounds may indeed be new in the United Kingdom,
but such a power is similar to the position in many countries where a court can go
further and may set aside legislation that conflicts with the constitution. Under the
HRA, a claimant that obtains a declaration of incompatibility will have secured a
considerable victory on the substance of the case. He or she will be well placed to
go to Strasbourg if the offending legislation continues in being. Indeed, in practical
terms the statutory provision can probably no longer be relied on by the
Government, unless either the national law is changed (as happened after the
Belmarsh prison case) or the Government is prepared to derogate from the
Convention obligation in question. 
30. The implications of entrusting the judiciary with greater powers of
protecting Convention rights were probably not understood by the public at large
when the HRA was enacted, despite the clarity with which the White Paper in
1997 explained the scheme. Given the intentions behind the HRA, and the fact
that the jurisdiction of the courts was thereby enlarged to include matters akin to
the constitutional enforcement of fundamental rights, it is not surprising that
appellate judges have given much time to questions arising under the Act. But I do
not consider that the record of these decisions establish a case for either reconsidering
the scheme of the Act, or supporting allegations that the judges are usurping the authority of the executive or Parliament. In his judgment in the Belmarsh case, Lord Bingham set out the great weight that should
be given to decisions of Ministers and of Parliament in matters that involve a pre-eminently political
judgment, and said: “Conversely, the greater the legal content of any issue, the greater the
potential role of the court, because under our constitution and subject to
the sovereign power of Parliament it is the function of the courts and not
of political bodies to resolve legal questions”.
139 He drew attention to the Convention regime for the international protection of 
human rights, which “requires national authorities, including national courts, to
exercise their authority to afford effective protection”.
140 On the proportionality of the scheme for detaining foreigners suspected of terrorist involvement indefinitely without trial, Lord Bingham did not accept a submission by the Attorney-General that distinguished between democratic institutions and the courts, saying: 
“The Attorney-General is fully entitled to insist on the proper limits of
judicial authority, but he is wrong to stigmatise judicial decision-making as in some way undemocratic—
141
 [particularly when the court was
performing functions assigned to it under the HRA] … The 1998 Act
gives the courts a very specific, wholly democratic mandate. As
Professor Jowell has put it: ‘The courts are charged by Parliament with
delineating the boundaries of a rights-based democracy’”. 
142
31. The review of case-law by the Department for Constitutional Affairs in July 
2006 concluded that decisions of the courts had had no significant impact on
criminal law or on the Government’s ability to fight crime. The HRA had had an
impact on the Government’s counter-terrorism legislation, but the main difficulties
had arisen from decisions of the Strasbourg Court. The Act had had a significant
but beneficial effect on the development of policy by central Government. But it had
been widely misunderstood by the public and sometimes misapplied, and some
‘damaging myths about human rights’ had taken root. The Government remained
fully committed to the ECHR and HRA, but would take steps to give new guidance
to departments on human rights, would take a proactive approach to human rights
litigation, and would make efforts to inform the public about the benefits of the
HRA and to debunk myths that had grown up around Convention rights.

32. This appraisal of the HRA has not, however, always been reflected in the 
reaction of some Ministers to decisions by the courts. A later section will examine
some difficulties that have arisen from the response of Ministers to judicial
decisions. 
33. The question discussed in this section has been: ‘In what ways has the HRA
affected the constitutional balance between Parliament, the executive and the
Judiciary?’ In summary, my answer is that, so far as the protection of rights
guaranteed by the ECHR is concerned, the HRA has vested new powers in the
courts to determine the limits of those rights and to decide whether those rights
have been respected by public authorities (including the executive) and whether
legislation by Parliament (whenever enacted) is compatible with those rights. The
HRA has created a new form of judicial review of legislation, and new grounds for
the review of executive decisions, thus enabling judicial decisions to be made on
human rights claims. However, when primary legislation is concerned, ultimate
legislative authority remains with Parliament, acting on the proposal of the
executive. This new form of protection for human rights is exactly that envisaged
by the framers of the HRA. The effects of the Act have often been misunderstood
both in some political quarters, in the media, and by the public at large. Some
recent criticisms of the judiciary may have come about because of a failure to
understand the constitutional implications of the HRA. 
F. Criticism of the Judiciary in the Media, in Parliament and by the
Government 
34. As has already been seen, the functions of the judiciary are different in both
substance and form from those of the executive and legislature; and judicial 
143independence is to be contrasted with the democratic accountability of legislature
and executive. But does their independence mean that the judges are not
‘accountable’ for their work, whether to Parliament, the executive or to the public?
Is judicial independence incompatible with any form of criticism? The next
sections examine the extent to which the position of the judiciary is protected in
law and constitutional practice. 
(1) Should the media be under any special requirement to respect the authority
of the judiciary? 
35. At one time, the common law on contempt of court enabled the courts,
albeit acting as judges in their own cause, to impose penal sanctions should a
newspaper or journal exceed the limits of permissible criticism of the judiciary.

The law of contempt also applied to publications that might prejudice the holding
of a fair trial—for example, a newspaper publishing details of an accused person’s
previous convictions, casting doubts on the veracity of witnesses, or urging that
severe penalties should be imposed on the accused. The obligation of the press not
to prejudice the holding of a fair trial is reinforced by Article 6/1, ECHR.

36. The need for some limitation on freedom of the press as it affects the 
judiciary is recognised by Article 10/2 ECHR, which permits freedom of 
expression to be restricted by law where this is necessary in a democratic society 
for (among other things) “the protection of the reputation or rights of others, for
preventing the disclosure of information received in confidence, or for maintaining
the authority and impartiality of the judiciary.” The common law on contempt of
court was modified by the Contempt of Court Act 1981, in response to the
decision of the European Court of Human Rights in the Sunday Times case.
 In
that case, a majority of the Court held that a ban imposed by the English courts on
publishing material relating to the thalidomide disaster (because of a pending civil
action against the manufacturers) was not necessary for maintaining the authority
and impartiality of the judiciary. 
37. Given the changes in the law made in 1981, and a more permissive attitude
to forthright discussion of current issues, the law on contempt of court has
virtually ceased to be a restraint on the severity of published comment on judges’
decisions. Certainly, an untrue press report that a judge had taken a bribe before
reaching his decision could give rise to an action in defamation; and press
disclosure of confidential information that in the interests of justice must be kept
secret could give rise to liability for contempt of court and possibly to an action for
breach of confidence by the person whose confidence had been broken. But the
situation would have to be exceptional for even an abusive and scurrilous critique
of the judiciary to be held to be in contempt of court. 
38. There is a continuing risk of sensational and one-sided reporting in sections
of the press. Responses from litigants or other interested parties may attempt to set
the record straight. But when a court decision has been given sensational
treatment of this kind, it will not generally be possible for the judge to reply.
Indeed, the judge’s decision with reasons will usually have been given in open
court. Even if the judge should wish to correct any misunderstanding of the 
decision, the judgment itself should have emphasised the factors that explain an
unexpected or controversial outcome. If the judge at first instance gets it wrong,
the mistake can be corrected by means of an appeal. If no appeal is brought, and a
putative mistake of law remains uncorrected, legal journals may comment on the
error. In general, the hope must be that good reporting of decided cases will in
time come to prevail over selective or biased reporting. 
39. It may be that the new presidential responsibilities of the Lord Chief Justice
will, in the interests of greater public understanding, enable a statement to be
issued when damaging mistakes have been made in press reports of a judgment.
The Judges’ Council may also have a role to play. But such action will not in itself
remedy persistent misreporting that intentionally presents a judge or judges in a
bad light. The unavoidable conclusion may be that this is an aspect of press
freedom to which judges, along with other public figures, must become
accustomed. 
(2) What limits apply or should apply to criticism of the judiciary in
Parliament? 
40. Article 9 of the Bill of Rights provides the fundamental building-block in
the relationship between the courts and Parliament: 
“the freedom of speech and debate or proceedings in Parliament ought 
not to be impeached or questioned in any court of place out of
Parliament”. 
Accordingly, no court could penalise or impose liability for statements made in
Parliament that judges in general were corrupt, that a judge had committed sexual
offences with young people
147
 or that an accused person facing trial was manifestly
guilty and should spend the rest of his life in prison. 
41. Nevertheless, Article 9 does not prevent the two Houses from exercising
control over what their members say in Parliament. An important example of such
control for present purposes is the sub judice rule, which bars members from
referring to civil or criminal cases in which proceedings are active in United
Kingdom courts. The rule has developed for three main reasons: 
(a) to avoid a risk of prejudicing court proceedings in individual cases;
(b) the principle of comity between the courts and Parliament; and
(c) the need to demonstrate that the judiciary operates independently of political 
pressures.
The Joint Committee on Parliamentary Privilege in 1999 examined the need for 
the sub judice rule, and concluded:
“[It] is not only a question of prejudicing a fair trial. Parliament is in a 
particularly authoritative position and its proceedings attract much
publicity. The proper relationship between Parliament and the courts
requires that the courts should be left to get on with their work. No
matter how great the pressure at times from interest groups or
constituents, Parliament should not permit itself to appear as an
alternative forum for canvassing the rights and wrongs of issues being 
considered by the judicial arm of the state on evidence yet to be
presented and tested.”
148

42. The report of the Joint Committee caused both Houses to look again at the 
sub judice rule. Resolutions embodying a revised form of the rule were adopted in
the Lords on 11 May 2000, and on 15 November 2001 by the Commons. The
rule, which does not apply to debates on primary or delegated legislation, is
subject to the Speaker’s discretion and provides for certain exceptions, in
particular when a ministerial decision is in question or where a case in the opinion
of the Chair concerns issues of national importance such as the economy, public
order or the essential services. The rule has recently been examined by the House
of Commons Committee on Procedure: the Committee agreed that the rule be
maintained, subject to some greater flexibility in the exercise of the Speaker’s
discretion. The Committee reminded MPs that they should not say anything on
the floor of the House that would affect evaluation of the merits of proceedings
which were imminent or before the courts, or would influence the result of
proceedings, in particular the likelihood of an acquittal.
149

43. The sub judice rule ceases to apply when civil or criminal proceedings 
relating to a matter are no longer active. Thus the rule does not prevent the
members of either House from raising matters concerning the merits of court
decisions that have already been made, so long as no appellate proceedings are
active. There is however a long-standing rule of the House that, unless discussion
is based on a substantive motion on which a vote could be taken (which in this
context would generally mean a motion calling for a judge to be dismissed),
members may not cast reflections on the conduct or motives of a judge or upon
judges generally.
150
 In 1987, when the Prime Minister (Mrs Thatcher) said at
question time that she was unable to comment on a particular sentence imposed
by a judge, the Speaker subsequently ruled: 
“It is perfectly in order to criticise or to question a sentence: but it is not
in order to criticise a judge. That has to be done by motion.”

Although the requirement of a substantive motion may create a real difficulty 
where neither the Government nor opposition parties are willing to find time for
debate of the motion, determined back-benchers may be able to find ways (for
instance, by way of an early day motion) of putting on record the substance of
their criticisms of a judge. 
44. Rodney Brazier’s account of these matters in 1994
152concluded that these
arrangements 
“in general represent a sensible balance between judicial freedom from
wrongful parliamentary pressure and Parliament’s rights in relation to
the administration of justice.” 
However, the rules under discussion do not deal with a current question of some
importance, namely whether judges should appear before select committees that
are inquiring into topics in which the performance of the courts is in question.
Moreover, Professor Brazier also had in mind the conventional rules that apply to 
151    Ministers, and emphasised that Ministers are subject to restrictions that do not
apply to backbench members. 
(3) What limits apply or should apply to criticism of the judiciary by the
Executive? 
45. One aspect of the constitutional relationships under discussion that has
recently caused concern is the extent and manner of criticisms made by Ministers
of judicial decisions. In particular, concern has arisen in two areas – decisions of
the courts in judicial review cases involving the Human Rights Act, and the
sentencing of convicted offenders. 
46. Where a court on judicial review holds a government policy or an executive
decision to be unlawful, the Government has the usual right of an unsuccessful
litigant to seek leave to appeal, if necessary to the House of Lords. The appeal
process will determine the merits of the legal issues concerned, and this is the right
course for a Minister to take when a decision has been made on a matter of
departmental importance. What is not acceptable is for a Minister to react to an
unfavourable decision by blaming the judges, casting doubt on their integrity,
alleging that they are intentionally thwarting the wishes of Parliament or claiming
that they have taken leave of their senses. Nor ought Ministers to instigate or 
condone hostile criticism of a judge in the media through off-the-record briefing 
that will cause some newspapers to pillory the judge concerned.
47. Moreover, when proceedings are pending before a court or tribunal, a 
Minister should not publicly call for a certain outcome (as occurred within recent
weeks when a Minister asserted that a Muslim class-room assistant in dispute with
her employers over the wearing of the veil must be dismissed).
153 It would be equally wrong for a Minister to demand that an accused person who was on trial
for a criminal offence should be convicted. 48. Recent incidents arising from three cases where Ministers intervened with comments about the Human Rights Act have been examined by the Joint
Committee on Human Rights.
154 The only one of these incidents to involve
criticism of a judge was the case of the Afghani hijackers. The judge in the
Administrative Court was Sullivan J, and the ministerial comment was (in effect)
that he must have taken leave of his senses. On appeal by the Home Office, the
Court of Appeal upheld the judgment, noting that the case “has attracted a degree
of opprobrium for those carrying out judicial functions” and commending Sullivan
J for “an impeccable judgment”.
155 After hearing evidence from the Lord
Chancellor, Lord Falconer, about the case, the Joint Committee found that the
Human Rights Act had been used “as a convenient scapegoat for unrelated
administrative failings within Government”. On the case of the Afghani hijackers,
the Committee observed:                                                                                                                               “In our view high level ministerial criticism of court judgments in
human rights cases as an abuse of common sense, or bizarre or
inexplicable, only serves to fuel public misperceptions of the Human
Rights Act and of human rights law generally”.
156

49. The Sweeney case in June 2006 was examined by the House of Commons 
Constitutional Affairs Committee.
157
 The Home Secretary had expressed strong
criticism of the sentence given to Craig Sweeney by Judge John Griffith Williams
QC, after he had pleaded guilty to abducting and sexually assaulting a 3-year old
girl. The situation was not helped by a statement on radio by the Parliamentary
Under-Secretary of State (Vera Baird QC) to the effect that the judge’s sentence
was wrong. This was promptly followed by correspondence between the Minister
and the Lord Chancellor, in which she withdrew her comments and acknowledged
that they should not have been made. Annex 2 to this paper contains an extract
from the evidence given by the Lord Chancellor to the Constitutional Affairs
Committee. Annex 3 contains the text of a letter sent by the Lord Chief Justice to
circuit judges dated 19 June 2006. Such a letter may have raised their morale, but
would not bring to the public generally that it was not the error of a judge that had
caused the controversy. 
50. At one time, it was considered to be a constitutional convention that
members of the Executive would not criticise members of the judiciary. While the
Government might properly say that a court decision differed from the legal advice
on which it had acted or that it proposed to bring in amending legislation,
Ministers were expected not to state that a court’s decision was wrong, nor to
impute improper motives or incompetence to the court. To quote Brazier again,
writing in 1994: 
“Ministers are by convention expected to show due inhibition when
commenting in Parliament on judicial words and deeds…”— 
to which the author added the comment,
“It would never be proper for Ministers to criticise the judiciary outside 
Parliament”.
158

51. The interpretation and effect of many conventions fluctuate over time. The 
behaviour of some Ministers in recent years makes it necessary to consider whether
the convention stated by Brazier still survives, or whether it has merely lost some
of its former authority and been ignored. 
52. In 1995, there was a period of acute tension between the Home Secretary
(Mr Michael Howard) and the judiciary, resulting from a series of judicial review
decisions involving the Home Office.
159
 Criticisms of the judiciary by Mr Howard
were accompanied by attacks launched by several newspapers on judicial review,
on the judiciary in general, and on individual judges. The Times (3 November
1995) said, 
“it is tempting to observe a pattern emerging, a potentially alarming hostility
between an over-mighty executive and an ambitious judiciary”.  53. In February 2003, the Home Secretary, Mr David Blunkett, reacted with
anger to a decision of Collins J upholding the right of six asylum-seekers to receive
support from the National Asylum Support Service (NASS), an agency of the
Home Office.
160
 The case arose under section 55 of the Nationality, Immigration
and Asylum Act 2002, which prevented the Home Secretary from granting
support to certain asylum-seekers but empowered him to grant support to them
where this was necessary for avoiding a breach of their Convention rights. In the
absence of a right of appeal against a refusal of support by NASS, the flood-gates
opened to a torrent of claims for judicial review. The decision by Collins J led
Mr Blunkett to say on radio: 
“Frankly, I’m personally fed up with having to deal with a situation
where Parliament debates issues and the judges then overturn them”. 
In a newspaper article, he said that it was “time for judges to learn their place”.
The Daily Mail, along with some other newspapers, complained that Collins J
“had chosen to set his will above Parliament’s”. A Labour MP wrote in the Express
on Sunday, “We’re used to lawyers trying to bend the rules. What is not so easy to
forgive is the destructive activity of a judge.” 
55. In dealing with the Home Secretary’s appeal in this case, the Court of 
Appeal explained that the task of the courts was to interpret the laws made by 
Parliament, and commended “the care with which, in his lengthy judgment, [the
judge] addressed the difficult issues before him”.
161
 The judgment of Collins J was
largely upheld, although not entirely, but the court endorsed the view that the
Home Office’s decision-making failed the test of fairness. Later, when other cases
reached the House of Lords, section 55 was considered by the Law Lords to be
inherently likely to cause the Home Secretary to breach the right of a destitute
asylum-seeker not to be subjected to inhuman or degrading treatment. The same
view of the section had been taken by the Joint Committee on Human Rights
when the proposed clause was rushed through Parliament without adequate
debate.
162
 Some aspects of this episode were highly specific to the immediate
context, but the affair vividly illustrates the need for an independent judiciary able
to interpret the laws made by Parliament, particularly when Ministers do not
appear to understand the constraints that apply to their policies, or indeed the full
content of legislation that they proposed to Parliament. 
56. It is not known whether Lord Irvine, Lord Chancellor at the time of
Mr Blunkett’s attack upon Collins J, intervened with his Cabinet ministerial
colleague. But some months later, Lord Irvine referred to the role of the executive
under the HRA and said: 
“But what about when the courts disagree with the executive? In a
democracy under the rule of law, it is not mature to cheer the judges
when a win is secured and boo them when a loss is suffered. Under the
previous administration, the public would have been forgiven for
thinking that on occasions the executive and the judiciary had ceased to
be on speaking terms. In the latter two years of the last government,
there was unprecedented antagonism between judiciary and government
over judicial review of ministerial decisions. Some Conservative
politicians even went so far as to call judicial review into question. We 
  have come a long way since then and the Human Rights Act has helped
us do so”.
163

Later, in evidence to a House of Commons committee, Lord Irvine gave an 
‘absolute assurance’ that while Lord Chancellor he had frequently argued within
government to insist that judicial independence was upheld.
164

57. While it is certain that recent governments have found it difficult to 
welcome decisions on judicial review to which Ministers are opposed, it is not
possible to assess the extent to which Lord Chancellors have had to intervene in
such moments of strain. But the record since the mid-1990s set out above suggests
that some Ministers today find their constitutional duties in this respect to be
irksome. Today, as has been seen above, all Ministers are required by the
Constitutional Reform Act 2005, s 3(1) to “uphold the continued independence of
the judiciary”. If the earlier convention that Ministers should not criticise the
judiciary has been seriously eroded, as it seems to have been, steps are needed to
re-state the convention in the light of that statutory duty. 
58. Since this is primarily, but not exclusively, a question that affects the
conduct of Ministers, it would be appropriate for a new chapter to be included in
the Ministerial Code that would make a full statement for the guidance of Ministers 
and their advisers of their obligations in respect of the judiciary. It should 
include
— 
(a) a statement of the implications of sections 1 (rule of law) and 3 (judicial
independence) of the CRA for Ministers and their advisers, including the special
role that the Act prescribes for the Lord Chancellor; 
(b) a statement of the sub judice rule from Parliament, but adapted for a ministerial
context, emphasising the need to avoid intervening with comments that might
prejudice the outcome of a current or pending trial or hearing; the rule should go
further than the rule in Parliament by applying not only to court proceedings but
also to tribunal proceedings; 
(c) a statement of the limitations that ought to apply to comment on and criticism
of decisions that have been made by courts or tribunals; 
(d) a reminder of the respect that Ministers, as members of the executive, should
extend to the courts and the judiciary; 
(e) a suggestion that Ministers should seek advice if necessary on the legal issues
involved before making off-the-cuff comments on current or recent court and
tribunal proceedings; that advice should be available both within departments and
also from the Lord Chancellor or the Attorney-General. 
It is indeed remarkable that the Ministerial Code is at present silent on the subject
of relations with the judiciary.
165 The inclusion of a statement on these lines in the
Ministerial Code would have the further advantage of making it readily available to
the advisers of all members of the Government.                                                                                                                                  
 G. Conclusions
59. This is a long paper, but it has not dealt with all the issues that are relevant 
to this ‘short inquiry’ by the Committee on the Constitution. Thus I have not
mentioned participation by judges in the media, the use of judges for governmental
inquiries, or the appointment of judges to such posts as the Intelligence Services
Commissioner under the Regulation of Investigatory Powers Act 2000. Although I
have dealt separately with the implications of the CRA 2005 and the HRA 1998,
an integrated picture of the changing position of the judiciary would require these
two very different Acts to be taken into account together. A comprehensive
assessment would include the role of national courts in respect of EU law, and
possibly also the effects of devolution. 
60. Despite the political controversies that have arisen in relation to the HRA,
and although the internal balance between Parliament, Executive and the judiciary
has changed because of that Act, an appraisal of the present role of the judiciary
would in my view be incomplete without some recognition of the way in which the
judges have answered the difficult questions that arise from the HRA and the
ECHR. The case-law includes some remarkable judgments that have fully justified
the aim of the Act in enabling United Kingdom judges to contribute to the 
developing understanding of human rights protection in the 21
ANNEX 1 
st
 Century. 
Joint Committee On Human Rights Thirty-Second Report
 (2005–06): The
Human Rights Act: the DCA and Home Office Reviews 
Summary
Introduction
In May 2006 there was public controversy over the Human Rights Act 1998 
(HRA). Three high-profile cases led some to argue that the HRA, or the way it
was being interpreted, was preventing the Government from ensuring public
safety, and that it should be repealed or amended. The Prime Minister asked the
Lord Chancellor and the Home Secretary to conduct reviews of the impact of the
HRA. He also asked the Lord Chancellor to “devise a strategy, working with the
judiciary, which maintains the effectiveness of the HRA, and improves the public’s
confidence in the legislation”, and asked the Home Secretary “to consider whether
primary legislation should be introduced to address the issue of court rulings
which overrule the government in a way that is inconsistent with other EU
countries’ interpretation of the European Convention on Human Rights.”
(paragraphs 1–2). 
On 18 May the Joint Committee on Human Rights decided to conduct an enquiry
into “the case for the Human Rights Act”. In October 2006 we also decided to
inquire into the human rights implications of Home Office proposals drawing in
part on its internal review of the impact of the Human Rights Act and the
European Convention on Human Rights on decision making in the criminal
justice, immigration and asylum systems. We also raised with the Home Secretary
the Chahal judgment. We took oral evidence from the Lord Chancellor and
Baroness Scotland on 30 October. The main purpose of this Report is to inform
Parliament about the Government’s recent reviews of the Human Rights Act
(paragraphs 3–8).